Gender Bias in the Family Courts of Canada: Fact or Fantasy?
Presentation to Fathers Are Capable Too ( F.A.C.T.) Tuesday, March 16, 1999
INTRODUCTION
What is “Gender Bias”? Is there a particular problem with gender bias in Canada’s Family Courts? Is it a “fact” or is it a “fantasy” dreamed up by frustrated male litigants and their lawyers? What can we do to ameliorate what many perceive to be the injustice that is said to pervade judicial family law decision making?
Tonight, I will attempt to address some of these questions. We will be talking about gender stereotypes. We will be talking about discrimination. We will be talking about “injustice”, and we will be talking about “justice”. But most important of all, we will be talking about hope, fairness and our collective ability to make a difference.
Had time permitted, I would have liked to have discussed in more detail the historical development of gender bias in law and society. Did you know that British, Canadian and American law formerly gave custody pretty well automatically to fathers almost 100% of the time? Did you know that the roots of blatant maternal preference date back in the U.S. to 1830 [Helms v. Franciscus (1830), 2 Bland Ch. (Md) 544]? [See: Anne P. Mitchell: The Hypocrisy of ‘Equality’ in a Family Law Context, reproduced at: https://www.complexfamilylaw.com/wp-contentwww.backlash.com/content/gender/1995/5-may95/page15b.html. Great Britain and Canada were a little slower to grant women more rights in this area. In 1839, Britain passed legislation enabling courts to grant custody to mothers . [An Act to amend the Law relating to the Custody of Infants, 2 & 3 Vict. (1839), c. 54 (U.K.) – known as Lord Talfourd’s Act.] By 1886 in Britain, mothers officially obtained rights equal to those of fathers in regard to court ordered custody. [Guardianship of Infants Act, 1886, 49 & 50 Vict., c. 27] In Canada, by the 1920’s, judicial maternal preference was clearly established. [See: Anne Marie Delorey: Joint Legal Custody: A Reversion to Patriarchal Power (1989), 3 CJWL 33]
Are you aware of how the media reinforces a bias against men by perpetuating certain negative images and stereotypes of men? [See: Armin A. Brott: Gender Bias in the Media: The Other Side of the Story, Nieman Reports, Winter 1994, Nieman Foundation at Harvard University, reproduced at: https://www.complexfamilylaw.com/wp-contentwww.erols.com/jkammer/nieman.htm] But we do not have the time to engage in this fascinating historical analysis.
I maintain that “gender bias” is indeed a reality in Canada’s courts (as well as in the other common law jurisdictions). Tonight I will attempt to provide some small degree of perspective to this most pressing injustice. There is so much to say and unfortunately, we cannot spend hours upon hours. Let my talk this evening serve as a preliminary introduction.
I fully recognize that by my speaking out on this topic that I might incur the disapproval of those who may view my remarks as “politically incorrect” and not fully in step with my colleagues in the Canadian Bar Association Family Law Section and elsewhere. If I dare to criticize any of our judges, then there may be those of my colleagues at the bar who would view my remarks with some degree of displeasure. However, the time has come to speak out and speak out I will!
Once judges legislate (and they do legislate, make no mistake about that) and once judges apply stereotypes riddled with gender biased attitudes, then they make themselves fair game to fair analysis, fair comment and fair criticism. I should emphasize that my firm belief is that the very large majority of judges in Canada have no intention to discriminate upon grounds of gender. Like society in general, they have been influenced by popularly held stereotypes and myths that have been with us, in many cases, for years and years. These stereotypes and myths have been eagerly and professionally reinforced by radical feminists and a by a media, who like many of us, have feared to question the factual basis behind these stereotypes and myths.
Most judges want to be fair and do the right thing. It is the responsibility of litigants and their legal counsel to properly present the evidence and the authorities that challenge the myths. It is my responsibility as an observer and commentator on the Canadian legal scene to raise my voice loud and clear. The emperor has no clothes! The emperor has no clothes!
Once lawyers fail to meet the needs of a significant portion of their clientele, then it is high time that someone spoke out on the needs of those who are often not adequately serviced by the legal profession. My talk here this evening consists of what I honestly believe to be fair comment. I speak only for myself. I do not necessarily reflect the views of FACT (although no doubt many of you will welcome much of what I say); I do not purport to speak for the bourgeoning non-custodial parents’ movement that is very quickly gaining prominence across North America and rapidly attracting the attention of members of provincial, federal and state legislatures. I speak only for myself. If my words find favour with you, then I thank you. If my words offend some of you, then please accept my apologies. I intend to offend no one. I do, however, intend to speak frankly and from the heart while at the same time I hope that I do still maintain that degree of balance and fairness to temper or modify my commentary so that it reflects an honest pursuit of truth, academic integrity and even handed legal analysis.
A STORY
Let us start with a story – a true story as I understand it. A Polish immigrant with limited English language skills went to Fredericton’s Family Court to get more contact with his five year old daughter. He had become unemployed. Mom applied to court for custody and dad sought to increase his two weekly afternoon visits. Mom wanted to limit dad’s contact with the child. Being unemployed, dad had the time, so why not? Justice Myrna Athey was reported, in the local papers, to have made the following comment on the record:
“Many fathers don’t even see their children on Wednesdays, so why should this five-year-old be spending Tuesdays and Thursdays every week with her father?”
Justice Athey reduced access to each Wednesday.
It does not end there! … When the New Brunswick Shared Parenting Association lept to the poor man’s defence and launched a complaint to the Canadian Judicial Council and publicly encouraged others who had witnessed such comments, nineteen local lawyers publicly lambasted the individuals who had spearheaded the drive. A letter from the lawyers to the local paper stated:
Ms. Jarratt’s comments are troublesome for two reasons: (1) There is no factual basis offered for the grossly generalized statements made; (2) The tactic of using a complaint by another individual as an opportunity to publicly and personally malign a judge in the language used is distasteful, particularly when the judge cannot respond to such allegations.
Individuals have the benefit of a process which permits them to complain about the conduct of a member of the judiciary. Public awareness of such a process should be encouraged. Moreover, questioning the merits of legislation and lobbying government for change is an inherent right in our democratic society.
However, publicly encouraging a campaign of complaints against a judge through the media in terms used by Ms. Jarratt is, in our view, not only irresponsible, but unacceptable.
These lawyers, while they would perhaps begrudgingly concede the right of a citizen to complain to the Judicial Council, they do not accept that gender biased comments made by a judge in open and public court should invite an equally or even greater public response. Do not the public have a right to know what goes on in our courts? Do not members of the public have the right to respond publicly when a judge pontificates openly in a public court about men in general? In our democratic system, do not citizens have the right to publicly comment on public pronouncements made by non elected officials, by judges? Do only lawyers have the right to comment on judge’s decisions but then only in academic law reviews? Should there not be a wider public debate about the key social issues that influence judicial decision making?
By the way, the complaint to the Judicial Council was predictably dismissed.
WHAT IS “GENDER BIAS”?
One dictionary [The New Collins Concise English Dictionary, 1982] defines “gender” as “all the members of one sex”. We all know what gender means. We are referring to “men” or we are referring to “women”. That’s the easy part.
That same dictionary defines “bias” as follows:
” 1. mental tendency or inclination, exp. Irrational preference or prejudice.”
Another definition, from that same dictionary, cites a meaning within statistics. The dictionary reads:
” 5. Statistics. A latent influence that disturbs an analysis.”
The New Collins Thesaurus [1984] gives the following synonyms for “bias”:
” n. 1. Bent, bigotry, favouritism, inclination, intolerance, leaning, narrow-mindedness, one-sidedness, partiality, penchant, predilection, predisposition, prejudice, proclivity, proneness, propensity, tendency, turn, unfairness. 2. Angle, cross, diagonal line, slant ~ v. 3. Distort, influence, predispose, prejudice, slant, sway, twist, warp, weight.
It is clear, I would suggest, that the emotional overtones of the word, “bias”, evoke a visceral, gut reaction to the effect that “bias” is hardly a praiseworthy quality. When we accuse a legal system, a judge or a lawyer of being “gender biased”, then this can be interpreted as an attack, an insult. No wonder that the Fredericton lawyers jumped to the defence of the their Family Court judge! I suggest that when a citizen simply states, in his or her pristine innocence, and when a lawyer simply states in his or her not so pristine innocence, that ‘the emperor has no clothes’, then the communal reaction ought to be: “My dear, let us examine our previous views to see whether or not the emperor indeed has no clothes.”
Just because the word, “bias” has such negative connotations, does that mean that those who are the subject of “gender bias” or those who care deeply about the issue, should sit still and be silent? The time for polite silence has long passed. I will demonstrate this evening, through just a few examples, how the law of Canada is rising to rid itself of gender bias in some areas, while in another area, in family law, men are discriminated against, vilified and simply put down for no other reason than the fact that they are men. It is curious indeed that gender bias is being wrestled to the ground in those areas where women have historically been faced with the most invidious and objectionable discrimination. But when men are subject to equally objectionable stereotyping, then this passes as science or common sense.
I therefore define gender bias in the context of our legal system as follows:
“Gender Bias” is the tendency to interpret the actual facts of the case before the court through a judicial prism of favouritism to one gender over the other where such favouritism is based on prejudice, stereotyping, distortion and irrational preference. (In the worst cases of “gender bias” the actual facts are not “interpreted”; the facts are actually ignored.)
“Gender Bias” is not exemplified, I must emphasize, where a man loses a court case. There are cases where the position advanced by a man in court is not well taken and there is ample reason for the decision to go against him. I was consulted recently by a man who had come through a long term marriage. His wife had left with him with apparently no warning and had gone to live in a basement apartment. This wife had no independent means of support. She was elderly and had been a stay at home mom during this long marriage. She had no skills and no job prospects. Where a marriage breaks down for any reason and where certain statutory criteria are met, the Divorce Act mandates that the spouse in the economically superior position shall pay spousal support. While one could argue that there should be no such thing as spousal support and that it should be the responsibility of the state to support the economically disadvantaged spouse, most would admit that spousal support is necessary and proper in these circumstances. However, the individual of whom I am speaking felt quite passionately that he was suffering from “gender bias” since he had been ordered to pay spousal support. He urged me to challenge the law. I declined. Gender bias does not mean that a man is faced with an order he does not like or does not think is fair.
Note that in my discussion of definition of “gender bias” I do not allude to the passing by Parliament or provincial legislatures of the actual laws themselves. While there is some residual bias within the black letter statutes themselves, I can say with some degree of confidence that the vast majority of the laws in Canada in 1999 are worded in gender neutral terms. The greater part of the problem lies, I suggest, with the judicial interpretation of our statutes as applied to the facts of individual cases.
I would like to quote from my esteemed colleague, lawyer Carey Linde of Vancouver, B.C. In his concise, forceful and persuasive submission to the Joint Committee [Carey Linde: “Unethical Lawyers Abuse Children”, Submission to the Special Senate Commons Joint Committee on Custody and Access, www.divorce-for-men.com] Carey said this:
A committee of parliamentarians concerned about fairness in custody and access issues has to realize that the gender neutral divorce laws are not the problem. The problem is with the “judicially assumed presumptions” that govern the day to day determinations of the best interest of the child test in our lower courts. These “presumptions” typically have never been put to the test of evidence, but spring from and are maintained out of gender biases still ingrained in the system.
On the other hand, I must admit that there appear to be statutes that although worded in a facially gender neutral manner, they really are targeted at men. A prime example of such legislation would be the Child Support Guidelines. The Guidelines fail to recognize the parenting expenditures of the non-custodial parent, who is usually the man. This problem is the subject of a Charter challenge that I currently have the privilege of conducting on behalf of a very dedicated and idealistic client. Another prime example would be the so-called Family Responsibility legislation. Legislation should not discriminate on gender grounds.
CAN WE SHATTER THE MYTHS?
[Many of the sources referred to here have been culled from an excellent paper by Carey Linde: A Case for Fathers and Co-parenting. This paper can be downloaded from his web site: www.divorce-for-men.com/downloads.htm. Another resource is Sanford Braver and Diane O’Connell: Divorced Dads: Shattering the Myths, Penguin Putnam, 1998.]Myths pervade our general culture and it is therefore understandable that judges who decide real live cases may also be influenced by stereotypes. What passes as common sense one day or what passes as scientific research findings the next day, may all be shown, on more rigorous examination, to be nothing more than expressions of gender stereotyping, prejudice and bias. It is the job of lawyers and it is the job of FACT and other similar groups, to gather the evidence that is already out there and forcefully, cogently and logically challenge the “wisdom” of the past. Let us examine some of that “wisdom” of the past against the mounting volume of social science research evidence. We will see that research calls into question society’s assumptions about child support, spousal support, and whether maternal custody is automatically better for children.
Myth: [with thanks to F.R.E.E., Fathers Rights Equality Exchange: Myth America – The Myth of the “Deadbeat Dad” at www.dadrights.org/myth_content.shtml ] – Deadbeat dads stash money and assets in offshore investments and jet off to St. Moritz to ski the slopes with the new girlfriend, while mom and the kids languish at taxpayers’ expense. $34 Billion in child support goes unpaid every year.
Reality:
- Most dads do pay their child support, in full.
- Those that don’t pay:
- don’t because they haven’t the means to pay;
- still find a way to make partial payments.
- $5.8 Billion in child support was unpaid in 1992 (the last year for which figures are available).
(Authority cited: Current Population Reports P23-163 U.S. Dep’t of Commerce, Census Bureau)
Myth:
Sociologist, Lenore Weitzman has reported that women suffered a 73% drop in their standard of living following divorce while men experienced a 42% increase in theirs. [Lenore Weitzman: The Divorce Revolution, 1985] This study has been cited favourably in numerous American cases as well as in a number of Canadian cases such as Keast (1986), 1 R.F.L. (3) 140 (Ont. H.C.); Linton (1988), 11 R.F.L. (3d) 444, 29 E.T.R. 14, 64 O.R. (2d) 18, 49 D.L.R. (4th) 278 (Ont. H.C.); Wedgwood (1989), 74 Nfld & P.E.I.R. 198, 23 A.P.R. 198 (Nfld U.F.C.); Benson (1994), 3 R.F.L. (4 th) 291, 120 Sask. R. 17 (Sask. C.A.): Moge (1992), 43 R.F.L.(3d) 345 (S.C.C.)
Reality:
For years I accepted the Weitzman study as ‘truth’. But then I started to think about my own twenty years experience as a family law lawyer. I tried to recall those situations where the man improved his economic position post separation and divorce to the woman’s detriment. And guess what? I could think of precious few cases that fit the Weitzman model. The prime example where the model applies is one case that I recently took on: The husband and wife went to the same lawyer. Child support was fixed at $300.00 per month for four kids. The husband earned approximately $65,000.00; the wife earned less than $20,000.00. The wife paid full retail value for the husband’s share in the matrimonial home. There was no spousal support. In this case, the husband had relieved himself of the mortgage payments, gotten full value for his share in the home, and was paying drastically inadequate child support. The problem here was unique to a situation where a lawyer participated in what basically amounted to perpetrating a fraud upon the wife.
There might be a few other cases that I have heard about where the husband was very wealthy and used his superior economic power to impoverish the wife through protracted litigation. But these cases are the exception – not the rule. Virtually all the cases I have seen witness the standards of living of both sides going down. For most of us, it is a struggle to maintain mortgage payments, debt payments and other responsibilities. When you add separation and divorce into the mix, the same money has to provide for two households rather than one. Common sense tells us that everyone’s standard of living suffers. That is the economic reality of separation and divorce that my twenty years experience demonstrates. Weitzman just has to be wrong!
Indeed, further studies show that at best Weitzman was innocently mistaken. At worst, – well I do not want to say.
“The problem was that Weitzman’s numbers were woefully inaccurate, a conclusion shared by independent researchers, feminist researchers, and, eventually even Weitzman herself.” [Cynthia A. McNeely: Lagging Behind the Times: Parenthood, Custody and Gender Bias in the Family Court, 25 Florida State University Law Review 891 (Summer 1998)]
Respected economists whose figures were used by Weitzman in her research, found that divorced women’s standards of living actually rose within five years to a figure higher than that obtained while married to their former husbands. [Id.]
Sanford Braver’s book, Divorced Dads: Shattering the Myths, demonstrates that much of the research on the topic subsequent to Weitzman’s fails to consider the U.S. Tax Code which, like our own, favours the single custodial parent. Like our own Child Support Guidelines, this research also fails to consider the non-custodial father’s spending on the children. After making these adjustments, Braver tells us that the economic effects of divorce are similar for both genders; mother might even have a slight advantage. [Source for parts of this summary: Book Review by Cathy Young in The Detroit News, October 21, 1998, as forwarded by Nicholas J. Kovats, Freedom for Kids]
The U.S. Census Bureau has confirmed in a study that Weitzman’s 73% number was wrong and inconsistent with her own information. Eventually, Weitzman herself acknowledged her study was erroneous. [Id.]
A sidenote: Even where one Canadian court acknowledged that the Weitzman work was flawed, it still accepted the same analysis:
See Baker v. Baker (1996) 22 R.F.L. (4th) 13, 182 A.R. 41 (Alta Q.B.):
I am aware the Weitzman study has been criticized, and that further research has been done which supports the conclusion that the impact of divorce upon women is not statistically greater five years after divorce than the impact on women of the general conditions of the work force. (Faludi, Susan: “Backlash: The Undeclared War Against American Women”, Anchor Books, Doubleday, 1991.) However, the Supreme Court of Canada in Moge (supra) did not rely solely on the Weitzman study to conclude that divorce support awards were impoverishing women and allowing men to become richer.
Myth:
The best interests of a child normally lie with the “primary caretaker” to whom custody should normally be awarded.
Reality:
“No empirical evidence supports the distinction between primary and secondary caretaker after age five, as children’s greatly increased social, cognitive, and emotional maturity creates changes in the meaning of attachments and parent-child relationships to the child.” (Emphasis added.) [Joan B. Kelly: The Determination of Child Custody, Children and Divorce, Vol. 4 No. 1, Spring 1994] According to Mr. Linde, data in this paper suggests that there is no distinction between primary and secondary caretaker even before the age of five.
Myth:
Women suffer a legislative and practical disadvantage in Canada’s family courts.
Reality:
While divorce represents a loss which deprives fathers of an attachment figure and a role or identity, it also constitutes a situation where fathers are judicially and legislatively disadvantaged on the basis of gender. [Edward Kruk: Psychological and Structural Factors Contributing to the Disengagement of Noncustodial Fathers After Divorce, Family and Conciliation Courts Review, Vol. 30, No. 1, January 1992]
Myth:
Men are not usually as capable of being custodial parents as are mothers.
Reality:
“Fathers who have sole custody echo the complaints of mothers with sole custody. They feel overburdened, just as the mothers do, but the evidence indicates contrary to the stereotype that divorced men can rear and nurture their children competently and are equally capable of managing the responsibilities of custody, with the possible exception that the fathers have been found more effective when it comes to matters like discipline, enforcing limits, and that’s particularly with boys.” [Dr. Richard A. Warshak’s submission to the Joint Interim Committee on Family Law for State of Missouri. Dr. Warshak is author of “The Custody Revolution – The Father Factor and the Motherhood/Mystique”.]
“Park and Sawin found that fathers fed their babies as effectively and efficiently as did their spouses. They solved their feeding problems, burped and stroked, awakened and soothed appropriately and, most important, got as much milk into their babies in the allotted time as did their spouses. This rather surprising finding held true whether or not the fathers had extensive experience with babies before their own were born.” [Kyle D. Pruett: The Nurturing Father, Warner Books, 1987]
“Clear support cannot be found for the belief that fathers do not have the same sensitivity as mothers do, nor the belief that fathers do not have the capacity to assume the day-to-day responsibility for child care. On the contrary, studies show that fathers can be just as sensitive and competent in care-giving as mothers. In one group of studies, researchers have compared the psychological and physiological responses of mothers and fathers to infant smiles and cries (Frodi & Lamb, 1978; see also Berman, 1980). Findings show that when given this opportunity and encouragement, fathers are just as sensitive and responsive to infants as mothers are. In another group of studies (See Parke, 1979) mothers and fathers were observed interacting with their newborn babies in the first few days after birth. During this observational session, fathers were found to be just as involved with and nurturant towards their infants (e.g., in touching, looking at, kissing, talking to). Also, fathers were found to be just as competent at feeding. They were equally likely to be able to detect infant cues, e.g., sucking, burping, and coughing, and were just as successful, as measured by the amount of milk consumed by the infant.” [Graeme Russell and Norma Radin: Increased Paternal Participation, Chapter 9 in Fatherhood and Family Policy edited by Michael E. Lamb and Abraham Sagi published by Lawrence Erlbaum Associates 1983, page. 157]
“The major finding of the study was that across a variety of assessments of psychological well-being (self-esteem, anxiety, depression, problem behaviors), children (especially boys) did significantly better in the custody of their fathers. Moreover, children in father custody had the advantage of maintaining a more positive relationship with the nonresidential parent – the mother.” [K. Alison Clarke-Stewart and Craig Haywood: Advantages of Father Custody and Contact For the Psychological Wellbeing of School-Age Children (1996), 17 Journal of Applied Developmental Psychology 239]
Myth:
Mothers have closer bonds with children, particularly those of tender years. Children do not bond to fathers as closely as they do to their mothers.
[From the recent case of B.B. v. T.H.B., unreported, digested at [1999] O.J. No. 45 (Ont. Fam. Ct) Philp. J., 4 January 1999 at paragraph 148]: “The rule that children of tender years belong with their mother has been considered by the courts as a rule of human sense or common sense rather than a rule of law. It is only one factor to be considered with all the circumstances.”Reality:
“Numerous studies have established beyond a doubt that infants form close attachment bonds with their fathers and that this occurs at the same time that they form attachments to their mothers. Although father and mother usually play different roles in their child’s life, “different” does not mean more or less important.” [Dr. Richard A. Warshak: The Custody Revolution – The Father Factor and the Motherhood/Mystique]
” … a warm, involved, caring father does militate against antisocial behavior, and an inadequate father does increase the probability of delinquency. As in the case of intellectual development and social development, a father can be a predominantly positive or negative influence with regard to his children’s moral development. And this runs counter to our cultural prejudice, which consistently devalues the father’s contribution to his children’s psychological development … for the better part of this century, our society and it’s institutions have overlooked all but the father’s economic contribution to his children.” [Warshak, id.]
” … stereotypes about the nature of men, women, and children have dictated custody decisions throughout history. In earlier times, it was assumed that men, by nature, are better suited to protect and provide for children. Since 1920, it has been assumed that women, by nature, are better suited to love and care for children … As guidelines for custody dispositions, folklore, sentiment, and stereotypes are poor substitutes for factual information.” [Warshak, id.]
Myth:
Upon family breakup, young children will miss their mother more than their father and therefore, young children should stay with their mother.
Reality:
Many studies show that children show no particular preference for or problem with either parent staying or leaving. [Michael E. Lamb: The Role of the Father in Child Development, Whiley Press, 1976]
Children in stress or not in stress showed no apparent preference for either parent. [Id.]
There was no difference in protest following maternal or paternal departures. [Id.]
Little difference was found between infant attachment to mom or dad. [Shirley M.H. Hanson and Frederick W. Bozett: Dimensions of Fatherhood, Sage Publications, 1985]
Myth:
“We all agree unequivocally that access denials form a miniscule part of our practices.” [Canadian Bar Association National Family Law Section Chairperson, Heather McKay, as reported in The Lawyers Weekly, May 29, 1998: Denial of child access not the main problem: CBA, page 7]
Reality:
[Excerpt from a Letter to the Editor by Gene C. Colman] –“On the contrary, I maintain that the problem of access denial is much more widespread than it should be or my colleagues in the Family Law Section apparently believe it to be. Liberal M.P. Roger Gallaway, the chair of the Joint Committee, was quoted in the May 10 Sunday Sun as having received a submission from the Ottawa-Carleton C.A.S. to the effect that of the 900 complaints received which involved custody – access cases, 600 were shown to be unfounded or unsubstantiated. A 1991 article in the American Journal of Orthopsychiatry reported that in a survey of 220 divorcing couples, noncustodial parents reported significantly more visits with their children, as well as significantly more denial of visitation by their ex-spouses, than did custodial parents.
While I agree that more empirical studies would be helpful, in the meantime there are a significant number of Canadian noncustodial parents who are labouring against a ‘stacked deck’; legislation is required now to better foster and encourage contact between children and both their parents. Unreasonable denial of access, false claims of abuse, and other tactics which deprive children of a separated/divorced parent, are significant and tragic problems that call out not only for social solutions (as correctly advocated by the C.B.A. committee), but for effective legislative remedies as well.”
In a 1997 study “40% of the custodial wives reported that they had refused to let their ex-husband see the children at least once, and admitted that their reasons had nothing to do with the children’s wishes or the children’s safety but were somehow punitive in nature.” However, the study is silent on what percentage of custodial fathers do the same. [Julie A. Fulton: “Parental Reports of Children’s Post-Divorce Adjustment”, Journal of Social Issues, Vol. 35, 1997, p. 133] Fifty-three percent of the non-custodial fathers claimed their ex-wives had refused to let them see their children.
In another major work on the subject:
42% of children said their mothers tried to prevent them from seeing their fathers after divorce – 16% said their fathers tried to prevent them seeing their mothers. [Glynnis Walker: Solomon’s Children – Exploding the Myths of Divorce, New York: Arbor House, 1986]
HOW HAVE THE COURTS DEALT WITH GENDER BIAS?
How have the courts dealt with gender bias? We have some very encouraging signals, including one recently from the Supreme Court of Canada, that gender bias and stereotyping is not be to be tolerated.
One level headed jurist [Justice Cecelia Johnstone of the Alberta Queen’s Bench, in MacCabe v. Westlock Roman Catholic Separate School District No. 110, unreported, digested at [1998] A.J. 1053 (Alta Q.B.) 5 October 1998, Johnstone, J.] bucked precedent in a personal injury action and held that a determination of a school girl’s future lost income claim should not be prejudiced by using statistical yardsticks that reinforced lower wages for women versus men. Justice Johnstone stated (I have added the emphasis):
[para469] It is entirely inappropriate that any assessment I make continues to reflect historic wage inequities. I cannot agree more with Chief Justice McEachern of the British Columbia Court of Appeal in Tucker, supra, that the courts must ensure as much as possible that the appropriate weight be given to societal trends in the labour market in order that the future loss of income properly reflects future circumstances. Where we differ is that I will not sanction the “reality” of pay inequity. The societal trend is and must embrace pay equity given our fundamental right to equality which is entrenched in the constitution. The courts have judicially recognized in tort law the historical discriminatory wage practices between males and females. The courts have endeavoured to alleviate this discrimination with the use of male or female wage tables modified by either negative or positive contingencies. However, I am of the view that these approaches merely mask the problem: how can the Court embrace pay inequity between males and females? I cannot apply a flawed process which perpetuates a discriminatory practice. The application of the contingencies, although in several cases reduce the wage gap, still sanction the disparity.
[para470] A growing understanding of the extent of discriminatory wage practices and the effect of this societal inequity must lead the Court to retire an antiquated or limited judicial yardstick and embrace a more realistic, expansive measurement legally grounded in equality. Equality is now a fundamental constitutional value in Canadian society. As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. 129, there have been profound changes in women’s labour force participation. Since Brooks there has been even greater accommodation of the parental needs of working women. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women. Accordingly, if there is a disparity between the male and female statistics in the employment category I have determined for the Plaintiff the male statistics shall be used, subject to the relevant contingencies. Once again if the contingencies are gender specific, then the contingencies applicable to males shall be used except in the case of life expectancy, for obvious reasons.
What Justice Johnstone does in this case is this – she jetisons factually incorrect stereotypes with respect to women’s position in the modern day labour market. Just because old statistical projections said that women historically earned less than men, this is not sufficient justification, in an era of pay equity and Charter equality, to award a woman less for the future wage loss component of her personal injury damages. Justice Johnstone is quite correctly telling us that outmoded societal biases with respect to women’s wages are inconsistent with equality before the law. Her Honour states: “I cannot apply a flawed process which perpetuates a discriminatory practice.” Could such a sentiment … could such a noble and just sentiment be applied in child custody law?
Justice Johnstone states: “As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. 129, there have been profound changes in women’s labour force participation. Since Brooks there has been even greater accommodation of the parental needs of working women. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women.” ” Profound changes in women’s labour force participation” – think about that concept for a moment. It is quite true. We all know that from our everyday experience. It makes sense, doesn’t it? There have been societal changes in the way women work in society, in their opportunities for advancement, in the level of their wages. In most places, it is recognized as discriminatory if not illegal to pay a woman less for the same job that a man does. And that is as it should be!
So let us now turn to Justice John Goodearle in Banks v. Banks, [unreported, 19 December 1986, digested at [1987] W.D.F.L. 147, 2 A.C.W.S. (3d) 436, 9 F.L.R.R. 132 (Ont. U.F.C)]. This was the first Ontario case under the 1985 amendments to the Divorce Act where joint custody was imposed over mom’s objections. Decided in December 1986, the case is the family law parallel to the above personal injury damages case. But first, let us note what subsection 16(10) of the Divorce Act states. It was added in the 1985 amendments and is popularly known as the “friendly parent” provision.
Justice Goodearle begins the most important part of his joint custody decision by stating [pp. 23-24]:
Section 16.(10) is new and of significant help in the case at bar. It reads:
16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”
The judge then goes on to discuss the new era in childcare. He states:
Subsection (4), and (10) of section 16 may well ordain the dawning of a new era in the sharing of child-raising responsibilities by divorcing parents. For it seems that the Parliament of Canada, in proclaiming these sections into law, has acceded to the reality of some rather monumental changes in our modern day socioeconomic fabric. Most notably, that the modern day woman has broadened her range of vocations enormously and as well her appetite for participation in the work force after child birth. This is in contrast to the woman of yesteryear who participated in a traditional marriage which recognized her as the nurturer and homemaker and her husband as the bread-winner. Such a sociological change has of course quite obviously made modern day working women much less available to her historically traditional duties in child raising and, by nature social evolution, fathers have sprung into the breach and now participate more and more in the child’s daily activities and raising which of course includes disciplining and guidance.
Just as Justice Johnstone recognized a new social reality in 1998, some twelve years earlier Justice Goodearle recognized the new social reality in childcare and the impact that could have on court decisions with respect to the role of fathers. Would that more judges take notice of Justice Goodearle’s comments!
Justice Goodearle also quoted extensively from an excellent 1985 article that had been published in the Reports of Family Law [Judith P. Ryan: Joint Custody in Canada: Time for a Second Look, (1985) 49 R.F.L. (2d) 119]. That article demolished the stereotypes about women and men in the workforce, about the importance of fathers to children’s development, about the pain and dislocation experienced by sole custody children, etc. etc. The judge relied on the author’s reporting of the relevant social science research. Depending on the judge or the assessor, perhaps there is something to be side for bringing forward some of the various studies that cast doubt on widely held stereotypes and misconceptions.
The Ontario Court of Appeal has also struck a great blow against gender bias’s first cousin, gender stereotyping. Indeed, when we stereotype a group based upon preconceived notions, we tend to ignore the actual evidence staring us in the face. How many men have been looked at by judges and by lawyers as simply ‘another man’ bellyaching about “access”. People fail to consider the actual facts before them. “Oh, you’re just a man; you don’t have a chance of succeeding in court.” Well, the Ontario Court of Appeal has issued the wake up call.
That court recently had occasion to review a trial judge’s award of $120,000.00 to an autoworker – supervisor for wrongful dismissal [Bannister v. General Motors of Canada Ltd., (1998), 40 O.R. (3d) 577, 164 D.L.R. (4th) 325, 112 O.A.C. 188]. The plaintiff (GM supervisor) had sexually harassed a number of his female workers and was, I would suggest, quite properly sacked. The appellate court sensibly rejected the plaintiff’s “rough environment” argument. The supervisor had argued that the GM plant is a rough place where rough language and sexually suggestive banter is common place. Justice Carthy felt that the trial judge’s reasons demonstrated “a complete lack of appreciation of the modern concept of equality of the sexes. ” Basically, what the Court of Appeal is saying here (and it has been said in other cases as well) is that abuse and sexual innuendo are not acceptable in the workplace. In other words, in my view, the Court of Appeal is striking a needed blow in favour of gender equality.
The cases tell us that the workplace must not be a source of any kind of gender discrimination; sexual harassment is a particularly invidious expression of discrimination and it will not be countenanced under any circumstances. And, just to review Justice Johnstone’s precedent setting decision, if you are disabled from working, then calculation of your lost income must be measured using statistics that are not loaded against you solely because you are female. Your gender should not cause you to suffer discrimination when assessing damages for loss of future income. All of this makes eminently good sense. It is consistent with the Charter and it probably strikes a responsive cord amongst most lawyers and judges. Who would, in their right mind, argue against such a fair minded approach?
Our highest court, the Supreme Court of Canada, has recently rendered a decision that has sparked unprecedented controversy across the land and has led to calls for the dismissal of an eminent appeal justice from Alberta and of Madam Justice L’Heureux-Dubé of the Supreme Court [ R. v. Ewanchuk, unreported, digested at [1999] S.C.J. No. 10, 25 February 1999]. Briefly, the Supreme Court of Canada was hearing an appeal of a sexual assault acquittal in the Alberta trial court that was upheld by the Alberta Court of Appeal. The legal issue in the case was whether the complainant had consented, as consent is understood by the Criminal Code. A finding of an absence of consent should have been enough to send the case back for trial, however the Supreme Court of Canada convicted the accused. Where the case becomes interesting for those concerned with gender bias and stereotyping is the additional judgment proffered by Madam Justice L’Heureux-Dubé.
Madam Justice L’Heureux-Dubé states [at para 82]:
This case is not about consent, since none was given. It is about myths and stereotypes…”
The judge then goes on to quote an author who summarizes the various myths of rape (although this case was not a rape case). She then launched into a particularly vicious personal attack on Alberta Court of Appeal Justice McClung. She criticized McClung for his references to the complainant’s manner of dress and her living arrangements with her boyfriend and others. Madam Justice L’Heureux-Dubé then stated [at para 89]:
These comments made by an appellate judge help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the sexual assault, or her sexual experience signals probable consent to further sexual activity.
Reference was also made to various other comments by Justice McClung that provoked harsh criticism from Justice L’Heureux-Dubé. Each of the gender stereotypes trumpeted by the Alberta justice were demolished by Justice L’Heureux-Dubé. She states [at para 95]:
Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. The Code was amended in 1983 and in 1992 to eradicate reliance on those assumptions; they should not be permitted to resurface through stereotypes reflected in the reasons of the majority of the Court of Appeal. It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law.
Madam Justice McLachlin wrote a brief concurring opinion. She stated [at para 103]:
I also agree with Justice L’Heureux-Dubé that stereotypical assumptions lie at the heart of what went wrong in this case. … On appeal, the idea also surfaced that if a woman is not modestly dressed, she is deemed to consent. Such stereotypical assumptions find their roots in many cultures, including our own. They no longer, however, find a place in Canadian law.
Justice Minister Anne McLellan was reported [National Post, 26 February 1999] to have praised the court for ” eradicating stereotypes … that may give women pause in how they think they will be understood by the courts of this country.” On the other hand, eminent criminal law lawyer, Edward Greenspan defended the independence of the judiciary [National Post, 2 March 1999] and he defended Justice McClung from the highly personal attack launched by Justice L’Heureux-Dubé. Greenspan bemoaned how politics has taken over issues surrounding sexual assault. He stated:
It is clear that the feminist influence has amounted to intimidation, posing a potential danger to the independence of the judiciary. … Feminists have entrenched their ideology in the Supreme Court of Canada and have put all contrary views beyond the pale.
I agree with Greenspan and I agree with all those other brave individuals who have come to the defence of Justice McClung’s right to deliver an appellate judgment without being subject to a personal attack by the Supremes. I particularly agree with Greenspan when he notes that “feminist influence has amounted to intimidation”. The intimidation problem is certainly not restricted to criminal law.
However, as someone who is particularly concerned with gender bias within the family court system, I see in the judgments of L’Heureux-Dubé and MacLaughlin great opportunity. The judges themselves are attacking stereotypical assumptions. I suspect that they did not appreciate the full impact of their words. We are told that eradicating stereotypes is an important task to accomplish. I agree! Let us eradicate all stereotypes! Can any even handed and open minded jurist in this country argue that these principles should apply only to sexual assault cases? Can a judge seriously maintain that Justice L’Heureux-Dubé’s admonitions with respect to gender stereotyping can apply only to women but not to men? Should not these important and just principles be applied across the board? And should not such across the board application include such areas as child custody law and child support law? Are we only going to judge ‘on the evidence’ free from stereotypes when it comes to sexual assault, but when we talk of the importance of having fathers intimately involved in their children’s lives shall we permit “myths and stereotypes” to defeat a father’s claim to parent his children in a normal fashion?
“Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions.” – Does this judicial pronouncement pertain only to rape and sexual assault? Is it permissible to assume the worst of men because they are men?
“You dead beat dad! You have not paid your support for three months! I’m certainly not going to order Family Responsibility to refrain from suspending your driver’s license, buster! “
“But Your Honour, if you will turn to page two of my affidavit, you will see that I lost my job three months ago and I have been caring full time for my elderly father who has been diagnosed with a terrible life threatening disease. And I need my license to get to get back to work so that I can pay some child support, pay my rent and buy food.”
“I know a dead beat when I see one. I don’t need to read your affidavit. Next case.”
IS THERE A PARTICULAR PROBLEM WITH GENDER BIAS IN CANADA’S FAMILY COURTS?
Is there a particular problem with gender bias in Canada’s Family Courts? I believe that there is. We certainly need proper statistical studies. We need research. Where are the dedicated graduate students of sociology, psychology and law who have not been poisoned and co-opted by politically popular anti male feminism? We need you. Where are you?
I know this: Many of my colleagues openly admit to telling their male clients, “It is not a good time to be a man in the courts of Canada these days.” We say this because we know from admittedly subjective experience that to succeed as a man in court, it is much more difficult than if you are a woman. That is the reality.
Permit me to quote from the Report of the Special Joint Senate Commons Committee on Child Custody and Access [For the Sake of the Children, December 1998]. Toronto lawyer Michael Day is quoted at page 15:
When I go to court with a male client who is looking for custody, it’s always an uphill battle. I always have to have a special fact situation in order to have a good chance at getting custody.
Toronto psychologist and custody assessor, Dr. Marty McKay testified [page 16]:
My finding is that there are a lot of nurturing fathers out there. I’ve had some women tell me they don’t care how the assessment turns out because they are going to get custody of the children anyway “because they always give custody to the woman”.
The Report itself noted some of the more recent statistics from Statistics Canada [page 4]:
“[M]ost children (86%) lived with their mother after separation. Only 7% lived with their father, about 6% lived under a joint custody arrangement, and the remaining (less than 1%) lived under another type of custody agreement.”
These percentages are consistent with a 1989 study conducted for the Massachusetts Supreme Judicial Court on Gender Bias [Gender Bias Study of the Court System in Massachusetts (1989) reprinted in 24 New. Eng. L. Rev. 745 and cited in Cynthia A. McNeely: Lagging Behind the Times: Parenthood, Custody and Gender Bias in the Family Court, 25 Florida State University Law Review 891 (Summer 1998)]. A proper interpretation of the data revealed the following analysis:
- Mothers get primary residential custody 93.4% of the time in divorces.
- Fathers in divorce get primary residential custody only 2.5% of the time.
- Fathers in divorce get joint physical custody only 4% of the time.
- Fathers in divorce get primary or joint physical custody less than 7% of the time.
- Where fathers actively seek custody, they receive primary residency in less than one out of three cases (29%), and joint physical residency in less than half (46%).
These statistics fly in the face of the common feminist wisdom that fathers who seek custody in court more often than not succeed. This specious and false allegation is thoroughly demolished in Cynthia McNeely’s article [Section III].
The plain fact of the matter is this – in order for a man to succeed in maintaining a decent relationship with his kids (and by decent I mean in terms of time with the kids and even some responsibility for major issues affecting the lives of the children), he has to be what I call, “super dad”. Being just “normal dad” will not suffice. Dad has to prove to the court that he is one of those exceptional fathers who is ever so keenly attuned to all of the kids’ needs. He knows their shoe sizes; he has a strong relationship with each and every teacher since kindergarten; he bakes cookies with the kids; he is a master chef; he keeps an immaculate house; he has read all of the latest child rearing books at Chapters … at least twice; he has a veritable retinue of witnesses to attest to his superior child care abilities and his best witness is a social worker – perhaps the present or former dean of University of Toronto’s Social Work faculty.
Let us not forget the often sordid role of custody-access assessors. There was an excellent article by Donna Laframboise in the National Post on January 30, 1999. She described three cases where assessors had relied on false information, faulty assumptions and in one case it was clear that the assessor proceeded from the assumption that children normally should be with their mother. The complaint routes appeared to be inadequate and ineffective, to say the least. But should we expect any more balance from assessors than we currently do from judges and lawyers? They are all part of the problem.
Is there a gender bias problem in Canada’s Family Courts? When I was preparing this talk, I sent out an email through Nick Kovats’ educational email service (which by the way is one of the best ways to keep up to date on recent developments on matters of concern to non-custodial parents across North America). I announced that I was doing a talk and some legal writing on gender bias and I invited input from those who had felt that they had experienced gender bias in our family courts. The response was gratifying, yet depressing. I received stories from across North America. Gender bias has touched many; that is clear. … I heard from southwestern Ontario, from a dad whose family had been literally ripped apart because mom knew that the Guidelines would net her more money if she could just get that 21 year old son who had been living with his girlfriend back into her house and back into school.
I heard from a dad in Quebec whose custody claim was refused because he did not have a job.
I heard about scores of dads (and some moms) who had been falsely accused of sexually abusing their children decades after the alleged abuse had allegedly occurred. The police and crown lawyers simply assumed that the allegations must be true and have laid many charges, some of which have been thrown out of court; many claim to have been wrongly convicted and unfortunately languish in jail to this day.
I heard from a dad in Saskatchewan who had faced 11 false charges instigated by his wife. The crown prosecuted each time even though the court threw out all of the charges. As soon as his custody trial was over, he was arrested yet again and that charge was thrown out too.
One very remarkable story came from here in Toronto. Mom kidnapped the child to South America. After the greater part of the year, the child was returned under the Hague Convention and then dad had to slug it out at 393 University [the Court House in Toronto]. Dad was told by many, including judges, that the abduction by mom would play no part in a determination of custody! Can you imagine what part a dad’s abduction would play in the court’s determination? My informant wrote as follows:
[name deleted], the social worker for the Children’s Lawyer, during one of my seemingly endless meetings with them, got really angry at me when I suggested there may be some bias in the court system. Her words: “You should consider yourself lucky, Mr. X, after all, it is the policy of the government of Ontario that children stay with their mothers”. When my journalist’s alarms started sounding at the utterance of the word “policy”, I asked her, very softly, to tell me where that policy could be found. She stammered and said: “Well, it’s more of a general philosophy than a policy”.
I heard from heartbroken grandparents in Alberta. Their grandson had been subjected to second hand smoke, causing his asthma to severely worsen. When dad took court action, backed by medical experts and private investigators’ pictures of mom and her boyfriend smoking in the car with the boy, the female judge decided that the application was nothing more than the father trying to drive a wedge between mom and the boy and then ordered dad to pay $750.00 in costs. The grandparents close their letter to me with this: “We can assure you that if the genders in this case were reversed the father would probably have little more than supervised access.”
There was a troubling news article that came across my desk [Paul McKie, The Canadian Press, printed in the National Post, February 24, 1999]. A mother who was displeased with a custody order tried to hire a contract killer to dispose of her husband. She received a sentence of only two and one half years. But that was not the worse of it. The judge, as it is reported in this article, commented that there were no psychological assessments before him to suggest that husband had abused her during the marriage. The implication clearly is this: Had she believed that the husband abused her, she would have been justified in planning a cold, calculated murder and the sentence would have been less. Make no mistake please about what I am saying. Abuse is not excusable under any circumstances. But to imply that the belief that one is abused somehow might justify murder or a lesser sentence, certainly smacks of an invitation to all women who are pursuing a custody claim to claim abuse. The mere claim or belief that one is abused may be sufficient to obtain a tactical advantage.
Abuse allegations are very effective ways to have a husband removed and a non-contact with the children (or restraining order) put in place. I have found that a number of Provincial Division judges grant such orders without there being any notice to the father. I heard from a father in Edmonton – a heartbreaking and heartrending story. Time doesn’t permit me to read his entire two page single spaced email. Let me tell you, briefly, that false abuse allegations were hurled at him, even though he and the children were the ones who were beaten. He was turfed from his home by the police enforcing an ex-parte order. Solid physical evidence of the physical abuse (let alone emotional abuse) against the children by the mother is ignored by child welfare authorities who see dad’s complaints as simply part of his matrimonial case. How many men have been faced with similar brush offs by Children’s Aid but when the mother complains, a full scale investigation is launched during which lengthy period dad’s time with the children is simply cancelled. In the Edmonton father’s case, his daughter ran away to him but no one listens. Let me relate to you just a few quotes from this father’s email to me:
The whole system is bias[ed]. Women can say and do what they want and the fathers pay for it. This is not right. All I want is what is fair, that is all any good father wants. How can it be that a women can cry abuse and it is so, but when a man has proof of a women actually doing it, that there is never enough proof.
I have never been told that they would not grant me anything, except from my ex lawyer who said I would never win a custody issue because I was a man, and that the law sees that women are more nurturing, well not in this case, I was always the one there for them for everything, not my wife. I have had the worst look from a women judge as she entered the court room, like she already hated the fact that I even dare try for my children. This was when I was on my own after losing my first lawyer because of lack of money.
What I’m trying to say is, the law needs to look deeper into the family, to see what is really going on before they just grant the children like objects, to the women.
Yes, gender bias is a reality in Canada’s courts – and especially in the family courts. Many witnesses pored out their hearts to the Special Joint Committee. Some of that testimony comes through in the Joint Committee Report; more of it was posted on the internet. In my own practice, I see my clients being subjected to gender bias. I see it when I observe other cases as I sit in court waiting for my case to be called and I hear about it from some of my colleagues. I hear it from many of you when you talk to me at the conclusion of my presentations and when you call me on the phone for some quick guidance as to how to handle your cases. Enough is enough! Injustice, no matter where it is found, should not be permitted to plague our legal system. I am not talking here about doing anything against women. We have no quarrel with women as a group. All we want is for judges, assessors and lawyers to deal with family law issues absent any prejudice, bias or ill-conceived presumptions about what “men” can do or cannot do.
WHAT CAN WE DO TO AMELIORATE THE INJUSTICE?
What can we do to ameliorate the injustice? What can we do to sensitize judges, lawyers, social workers, assessors, the general public, to the reality of gender bias against men in the family courts of Canada?
As recently as a few days ago, the National Post reported [National Post, Saturday, March 13, 1999] that the National Shared Parenting Association is filing a complaint against all nine justices of the Supreme of Canada. The NSPA’s executive director, Danny Guspie, was quoted:
“We feel public debate has opened up and we’re attempting to raise the level of the public debate to take a look at what’s going on with the judiciary.”
This complaint has as much chance of succeeding before the Judicial Council as does … [well you can fill that in]. Public education is much more important. It is essential to bring to the attention of the public in a very reasoned, calm and sensible way, just what is really going on in the courts of Canada. There is ample evidence. Just turn to the law reports, to the reported cases. For example, in my Child Support Guidelines articles [see my web site as well as Gene C. Colman: Guidelines’ Undue Hardship Produces Conflicting Decisions, Money & Family Law, Vol. 13, No. 7, July 1998, page 53; Gene C. Colman: B.C. Court of Appeal Declines to Vary Child Support under the Child Support Guidelines, Money & Family Law, Vol. 13, No. 10, October 1998, page 75;], I point out how men and women similarly situated are treated quite differently. Likewise, in the area of child custody law, there are many examples of how men are similarly discriminated against on the grounds of gender. Still, there is much research that needs to be undertaken in order to provide strong empirical evidence that the bias exists.
I would like to see a chair established at a prestigious law school to foster research into what might be called “men’s issues” but are really gender equality and “people” issues.
I would like to see more lawyers do more than simply tell their male clients – forget it. You are a man and you cannot possibly succeed. This self defeatist outlook feeds into the stereotypes and perpetuates injustice. A lawyer must properly interview a client and see if he has the requisite fact situation that would justify pursuing matters whether through patient negotiation or through court action. Do not just assume defeat based on gender!
I would like to see a little more objectivity from my colleagues at the bar. We only hear about so-called “women’s issues” and how we do not need legislative reform, how access denial is not a problem, and on and on. There is a very large constituency of clients out there who are getting the shaft because lawyers are simply not taking leadership positions when it comes to promoting gender equality and gender fairness.
I would like to see organizations like FACT and the National Shared Parenting Association keep up the struggle for gender equality within our family courts. But advance your cause with reason, patience, cogent reasonable argument and of course, suitable political lobbying.
I would like to see Senator Anne Cools cloned about 200 times over and have 150 of those clones elected to the House of Commons and 50 of them placed in the Senate. Or, how about this one? Anne Cools for Prime Minister!
I would like the media to more objectively report those issues that are important to children and to families. What sort of issues require coverage and explanation to the Canadian public? Let’s try some of these: Denial of access, violence against men by their wives or partners, impoverishment of men due to impossible support awards that in some cases leave men with not even enough to pay rent and buy food, the failure of judges to read motion materials and simply deciding custody and access issues based upon assumptions, presumptions and stereotypes, and the list could go on and on.
It is time to let the Canadian public know that men facing separation and divorce are not being dealt with fairly. And if men are not being treated fairly, that means that their children are likewise suffering. But while we are so concerned with such issues, let us not forget that there are many women, particularly poor women and native women who likewise quite often are not being treated well by the courts, particularly in the child welfare field. There are women who are married to very wealthy individuals; these rich guys tend to abuse the court system with their high priced counsel in order to pound their wives into submission. All those women deserve our support because justice, fairness and equity should cut across gender lines.
There was a time when women as a group were not being treated fairly; that was wrong and it has now been largely remedied. But the pendulum has swung too far in the opposite direction. Now it is men who face discrimination in the family courts. Court cases must be decided upon the real evidence and not on myths. I call upon all those involved in our legal system to meet the challenge. Changes can be made but we require a significant shift in attitudes.
Groups like FACT have a key role to play in the struggle to achieve true gender equality in our courts. The skill with which you present your positions to the public and to policymakers will help to determine whether or not true gender equality and justice for Canadian families will be achieved.
I would just like to close now with another quote from that father in Edmonton. His words are from the heart. It is the task of those who truly care, to take positive and resolute action in order to transform the heartfelt words from Edmonton into attitudinal change and therefore into enlightened, just public policy. That father states:
The lies that women get away with about Fathers must stop! The courts must see who is the better parent, for the children, and not just because that parent is a woman. After all, it is what’s best for our children and the children of the future, that we all get together and make our laws fair for women and men, mothers and fathers, but mainly for our Sons and Daughters.
I thank you for listening [or reading] and I welcome your questions and comments.
