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PART 1: INTRODUCTION
Gender bias does
exist in Canada’s family courts. Is
this state of affairs healthy for litigants, lawyers, judges and the justice
system generally? I submit “not”. As lawyers, do we approach our cases in a
truly objective manner free from prejudice and stereotype? Do judges actually decide cases based upon
the law and upon the admissible evidence, free from prejudice and stereotypical
assumptions? Or, are we all manifestly
influenced by our upbringing, by our education and simply by our ‘gut’
feelings? How carefully and how
objectively do we really assess the tragedy of each individual marital
separation and divorce matter that comes our way?
This writer suggests that it is high time that we lawyers and judges
undertake some very serious soul searching.
We have failed our constituency – the parents and children who turn to
us for “justice”. This writer will
admit that “justice” for the “winner” is not necessarily “justice” for the “loser”. We surely cannot please all the people all
of the time. However, the manner in
which we approach our cases, the manner in which we filter the facts of the
case, the manner in which we apply the statute law and the case law, the manner
in which we deal with the participants on a simply human level – these are all
tasks that we must approach in a truly objective, balanced, even-handed and
most of all, courteous, manner. If we
do fulfill this mandate, our consumers (the families in the throes of separation
and divorce) will come to perceive that family law lawyers and family law
judges indeed do give every individual, do give every family, fair and
impartial consideration. If we do
fulfill our mandate, then there need not be “winners” and “losers”. Unfortunately, we have failed miserably to
fulfill our mandate. We have
alienated. We have been harsh and rude
in our dealings with counsel and their clients. We have made unwarranted and unjustified assumptions based upon
irrelevant personal characteristics of the other party and we have not
hesitated to repeat those untruths in letters, affidavits, and elsewhere. As
judges, we have been quick to condemn one side or the other without truly
empathizing with the pain and concerns of the litigants and without making any
real attempt to appreciate the often desperate situation of the party upon whom
we foist most of the financial responsibilities. In short, we lawyers and judges have exacerbated the conflict and
we must shoulder a good portion of the blame.
How have we allowed ourselves to become so ‘divorced’
from the concerns, the fears, and the angst of those whom we are supposed to
faithfully serve? There is a
preponderance of evidence which strongly suggests that rather than approach
cases from an objective launching pad, we allow ourselves to be significantly
influenced, nay swayed, by what is politically correct, by what appears to be
popular at any moment in time. In
short, we sadly do not do what we should be doing. We tend to ignore or minimize the actual ‘facts on the
ground’. We make assessments and
decisions based upon prejudice and stereotypes. In doing this, we lawyers and judges are prone to bring the administration
of justice into disrepute. We lawyers
and judges are promoting a high degree of alienation amongst substantial
sectors of our population. Surely we
have not done so intentionally! Most
family law lawyers and family law judges do want to do what is right and
just. Most of us truly want to help
families resolve their difficulties as quickly as possible. Nonetheless, we have allowed ourselves to be
led astray. We have to reform the
manner in which we resolve family law cases.
We have to critically examine our prejudices, our biases, our political
correctness. We have to recognize that
“gender bias” exists and then we have to move forward from that point to
sensitively address the needs of all of our consumers be they men, women or
children.
PART 2: DEFINITION
The New Collins Concise English Dictionary, 1982 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, favourtism, 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.
Emotional
Overtones: 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. This writer does not intend it to be taken that way. We are all prone to interpreting events, to
interpreting evidence, through the prisms of our own education and experience
(legal and otherwise) and to view the world and ascribe motives and behaviours
in a way that accords with our preconceptions.
While this is only human, it is not necessarily a fair and equitable
manner of presenting and deciding family law cases. We must strive to do better!
Gender Initiatives Review:
The Women Lawyers Association of New South Wales
presented a Discussion Paper for the New South Wales Courts’ Gender Initiatives
Review.[1] This paper correctly states:
Each person’s background,
experiences and views influence how they see the world and approach issues and
other people.
This same paper,
quoting from Prof. Kathleen E. Mahoney, notes that gender bias in the legal
system can be an unconscious as opposed to a deliberate attempt to undermine
the fairness of the system:[2]
Gender bias is acknowledged to be a systemic form of discrimination
– that is, a pattern of conduct - arising from social and cultural assumptions
about the roles and expected behaviour of men and women. Gender bias can arise
both as a predisposition or a pre-judgement. Most gender bias in the legal
system is unconscious, based upon attitudes and stereotypes rather than
deliberate decisions. Proving this attitudinal bias is difficult and hard to
prevent and correct. Biased attitudes affecting individual cases can then
affect the development of law and the treatment of women in society at large.
This author would support Prof. Mahoney’s analysis but only up to
the last sentence, if Prof. Mahoney means to imply that gender bias can, by
definition, operate only against the interests of women. Gender bias can, and does, operate against
both genders.
Prof. Mahoney continues her analysis but again, this
writer parts company with her if she means to imply that only women can be the
subject of gender bias. Her analysis as
to the dynamic of gender bias is one that this writer supports, provided we
recognize that both women and men can
face gender discrimination and bias.
Gender bias takes many forms. One form is behaviour or
decision-making by participants in the justice system which is based on, or
reveals reliance on, stereotypical attitudes about the nature and roles of men
and women or of their relative worth, rather than being based upon an
independent valuation of individual ability, life experience and aspirations.
Gender bias can also arise out of myths and misconceptions about the social and
economic realities encountered by both sexes. It exists when issues are viewed
only from the male perspective, when problems of women are trivialised or
over-simplified, when women are not taken seriously or given the same
credibility as men. Gender bias is reflected not only in actions of
individuals, but also in cultural traditions and in institutional practices.
Author’s Definition: 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 through a prism of favourtism to one gender over the other where such
favourtism is based upon prejudice, stereotyping, distortion and irrational
preference.
Our Challenge: The challenge for truly dedicated jurists
and lawyers is to overcome the past and to look forward in a way that leaves
open all possibilities – to judge fairly and impartially based upon the actual
facts of the individual case.
This writer adopts the words of Vancouver lawyer, Carey Linde [3]:
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.
PART 3: HISTORICAL BACKGROUND
Patriarchal
Society: Family Law used to be within the bailiwick
of men. Women were not permitted to
vote. Women were not even “persons” at
law until well into the 20th century. Women were clearly disadvantaged in contemporary terms.
Historically, we lived in a patriarchal society, ruled by men. Men made the laws; men applied the
laws.
In family law, the father as of right was the
one who was granted custody and guardianship of his children. It was not until 1839[4]
in England that the statutory authority was granted to the courts that even
enabled mothers to obtain custody - and then only if the children were under
seven years of age and if the mother had not committed adultery. Most Canadian provinces enacted legislation
similar to the 1839 British statute.[5] Only in the most exceptional of
circumstances were mothers granted custody under such a regime.[6] It was only in 1886 that mothers officially
obtained rights equal to those of fathers in regard to court ordered custody.[7]
From approximately the 1920's until the
present time, the courts have tended to leave children, especially of so-called
"tender years", in the care of the mother.[8] The foregoing brief history is but a
reflection of the social times. Women
were largely at the mercy of men. There
was a social perception that men knew what was best. It would only logically follow that there was a strong
presumption, as reflected in statute and case law of the time, that child
custody cases were decided in favour of men. This state of affairs had absolutely nothing to do with what may
have been best for any individual child.
It had everything to do with what was “politically correct” at the time. Our society and hence our legal system was
riddled with gender bias against women.
Feminist legal analysis: It is
understandable (and desirable) that the liberation movements of the 60’s led to
the feminist legal analysis of the 70’s and to the present time. This is a normal and healthy reaction to the
historical dominance of men in western society. Unfortunately, this analysis, like all sociological critique and
discourse, tends to generalize.
Furthermore, this discourse tends to have a socio-political agenda. Whether we are considering ‘female’ agendas
or ‘male’ agendas, special interest agendas that seek to disadvantage one group
have no place in our family law system.
Our family law legal system should be the epitome of even handedness and
fairness. Certainly no woman should
face any form of gender bias within the system; neither should any man have to
overcome stereotypical assumptions of judges and lawyers.
Don’t ignore true facts: When we decide
cases about the future responsibilities and rights of the disintegrating
family, we cannot and should not ignore the true facts of the individual
situations. Bias, stereotypical
assumptions, and shoot from the hip assessments of what role this particular
dad or this particular mom played during the marriage and after separation –
all have no place within an enlightened, impartial and truly fair/unbiased
system of family law justice.
PART 4: STEREOTYPICAL ATTITUDES
Stereotypical attitudes permeate society[9]
and quite naturally and as an extension of that, they permeate the attitudes of
lawyers and by judges. Men’s groups tend to argue that the system is stacked
against them because they are perceived in a certain fashion, regardless of the
facts of their individual cases.
Just as many men argue that gender bias permeates the system as
against them, so too do many commentators lament the insensitivity to the
predicament of women in the family law system.[10] These commentators emphasize there is a very
real issue of physical and other forms of abuse by men against women and
children. Illustrative of this position
are two articles in volume 14 - 1 (1997) of the Canadian Journal of Family Law:
Firstly, Dr. P. Susan Penfold, Clinical Director of the Child
Psychiatry Inpatient Unit at the British Columbia Children’s Hospital, argues[11]
that there are six commonly held assumptions with respect to child sexual abuse
allegations that arise during custody disputes. Referring to a number of other studies, Dr. Penfold cautions that
these assumptions have little validity.
Dr. Penfold observes that part of the problem here is that our system is
riddled with gender bias against women.
Quoting from the B.C. Law Society Gender Bias Committee, she writes:[12]
Over the past few years, various
federal and provincial committees and task forces have studied gender equality
in the justice system. The Report of
the Law Society of B. C. Gender Bias Committee concludes, “gender inequality is
pervasive in the legal and justice systems of this province. While we are satisfied that there are
examples of gender bias against men, the vast majority of concerns raised
reflect discrimination against women.” Family law is noted to present “the most difficult and complex issues of
gender bias…All of us hold preconceived and possibly stereotypical notions
about family law matters because of our personal life experiences.” Women often have multiple additional
obstacles to confront, including poverty, naivete about institutional
structures and practices, and the disadvantages of having to rely on legal aid
lawyers.
Dr. Penfold appears to conclude that this gender bias and
stereotyping are factors in society tending to doubt the veracity of women’s
allegations of child sexual abuse against men.
Unfortunately, Dr. Penfold herself stereotypes women (see the above
quotation) as poor, uninformed, and less competently represented because women
have to rely upon legal aid lawyers.
The second article in that same issue of the Canadian Journal of Family Law decries
the insensitivity of judges to the issue of male violence when it comes to
making decisions with respect to custody and access.[13] Melanie Rosnes’ methodology was to review
the content of the reported child custody and access cases in the Reports of Family Law from April 1992 to
April 1994. Of those, she found sixteen
cases of alleged violence; the mother usually received custody but the father
usually obtained unsupervised
access. Ms. Rosnes assumes that the
historical subjugation of women by men serves to influence judges to be
insensitive, to say the least, when it comes to dealing with male violence. Rosnes appears to assume that all men are
violent. The opening sentence of her
article makes this clear: “The subject of how male violence affects women and
children in the context of child custody and access is a relatively neglected
topic in Canadian academic literature.” Rosnes cites other studies herself to present proof of various
stereotypes, which this writer suggests places men in general in a very poor
light:
Ideologies perpetuating the subordination of women are reproduced
through the gender neutral discourse
of family law, in particular the best
interests of the child principle. (at p. 35)
The ideology of equality in family law, or the principle that both
parents are equal, creates the illusion of fairness and equity, while ignoring
the differences between men’s and women’s everyday lives, and the fact that in
most cases it is women who do the day to day work of caring for children. (at p. 35)
In addition to the ideology of equality, the ideology of fatherhood,
that is that children need fathers in
order to have a stable and fulfilling childhood, now pervades society. (at p.
35)
Familial ideology then, which includes the idea that the
heterosexual nuclear family is a warm, safe, and natural institution, permeates
both society and family law. (at p. 37)
Ideas about the family mask its inequality, its violence, and
exclude families and individuals who do not conform to the ideal. (at p. 37)
Patriarchal beliefs, or the idea that men are superior and have the
right to dominate and control women and children, also pervade law and
society. (at p. 38)
At one point in history a husband was allowed to beat his wife as
long as the object used was no thicker than his thumb, hence the rule of thumb. (at p. 38) [See below with respect to the myth inherent in this statement.]
Rather than acknowledging the historical roots of male violence, and
the structural conditions that perpetuate it, medical, legal and helping
profession discourses pathologize family
violence, and end up blaming woman for her own abuse.
Rosnes examines in some detail a selection of the sixteen cases and
criticizes them thoroughly. Her
conclusions emphasize her distinctly ideological position with respect to
generalized behaviours and roles of women and men and the effect that societal
perception of those roles may have on judicial decision making:[14]
Familial ideologies, which
emphasize romantic love and marriage, traditional gender socialization, and the
heterosexual nuclear family as the foundation of society, infiltrate all
institutional structures. As well,
patriarchal attitudes, the concept of women as property, and the hierarchical
nature of the family, all contribute to the normalization of male violence in
the home.
…
Ideologies
of the family, then, are legitimized by established legislation, and male
violence, which has very real consequences for women, children and society, is
ignored, minimized, normalized and perpetuated in family law.
These two articles, like many others that permeate the academic
literature, start from the premise that most (if not all) men are violent, that
we still live in a patriarchal society, and that judges are influenced by these
unwritten norms. The inevitable result
is that women cannot and do not receive fair treatment in the family courts of
Canada. The argument is made that it is
women who are victimized in heterosexual marriage and it is women who suffer
yet further victimization in the family courts. All of this, we are told, is on account of gender bias.
These authors are complaining of gender bias that permeates the
system. They do not want cases decided
based upon false stereotypes of idealized dads, misconceptions of the
historical role of women in the family and idealized perceptions of what a
“family” should be. Rather, they would
prefer that cases be decided on the basis of another set us stereotypes: that
men are violent by nature, that most if not all men exercise some sort of
violent control over women, that men have not played and therefore do not play
significant roles in the rearing of children, and that children would not
really miss their fathers in any event.
There are other commentators who take a more sympathetic attitude to
the plight of men who seek to maintain and even expand relationships with their
children upon separation and divorce. They approach the legal system with a
degree of trepidation that equals if not surpasses the feminist suspicion of
our family courts. They criticize the
assumptions, presumptions, and biases that they say men face in the family
courts.[15]
Myth:
One of the most pervasive myths of family law, here and in the
U.S.A., has been perpetrated by sociologist, Lenore Weitzman. She 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 a number
of Canadian cases[16] in numerous American cases as well as in
President Clinton’s 1996 budget.[17] “Weitzman’s figures have been cited by
policy-makers and others as hard evidence of what’s become known as the
‘feminization of poverty’”.[18]
Contra:
For years, like many others, this writer accepted the Weitzman study
as ‘truth’.[19] But then I started to think about my own
twenty-one years’ experience as a family law lawyer. I tried to recall those situations where the man improved his
economic position post separation and divorce while the woman’s economic
situation declined. I could think of precious few cases that fit the Weitzman
model. In fact, I could think of
none. 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. Both sides
are often faced with significant legal bills, other additional debt, and
increased stress that naturally affects work performance. Common sense tells us that everyone’s
standard of living suffers. My own
personal experiences certainly do not constitute scientific analysis. However, there has been ample criticism of
Weitzman in the literature:
The problem was that Weitzman’s numbers were woefully inaccurate, a
conclusion shared by independent researchers, feminist researchers, and,
eventually even Weitzman herself. [20]
Two social scientists whose methodology Weitzman had
used, attempted to duplicate Weitzman’s results using their own data. Those
social scientists found that “post-divorce women suffered a much smaller and temporary decline in their standard of
living of 30%. The two also found that
divorced women’s standards of living actually rose within five years to figure higher than that obtained while
married to their former husbands.” The two had tried to obtain Weitzman’s raw
data but she had held back on that for four years. When she did finally release her data, the figures were
“disorganized and unreviewable”. The
U.S. Census Bureau acknowledged that the Weitzman percentages were in error and
eventually, Weitzman herself acknowledged that “her study was erroneous”. [21]
Susan Faludi[22]
highlights many reasons to suspect Weitzman’s data and conclusions:
1.
For at least six years, Weitzman
avoided releasing her data.
2.
The authors of the methodology used by
Weitzman could not gain her cooperation for release of her data and they found
that Weitzman’s own published data was not consistent with her conclusions.
3.
The U.S. Census Bureau in 1991
supported the conclusions of the above two researchers, which therefore cast
doubt upon Weitzman’s conclusions.
4.
Weitzman’s sample size was a mere 114
divorced women and men and her response rate was very low.
5.
The sample was restricted to Los
Angeles County.
6.
Weitzman’s sole data source was the
memory of the women interviewed.
7.
Weitzman had no comparable data on
those divorced prior to the no-fault divorce laws of 1970.
8.
A 1990 study by two law professors
found that women and children were slightly better off under the no-fault law.
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; mothers might even have a
slight advantage.[23]
Canadian Study
with Empirical Data: The Federal Government
commissioned studies prior to the drafting and ultimate implementation of the Federal Child Support Guidelines. One such study is dated 1995 and is
entitled: “An Overview of the Research Program to develop a Canadian Child
Support Formula”.[24] The researchers used empirical data gathered
from fifteen court districts across Canada over a three-month period during
1991. They readily admitted the
possible frailties of their data,[25]
but ultimately concluded that the “empirical analysis based on this database to
be original, useful and worthwhile”.[26] They divided the families into three
subsections: low income – less than $15,000 annually; medium income - $15,001
to $30,000; high income – greater than $30,000.00.[27] There was a rather startling result when one
considers the conventional wisdom à la Weitzman et al: “In most cases, the standard of living of both parties declined as a
result of the separation.”[28] We
are dealing here with a sample of 869 cases.
Other findings of note:
·
“In general, when both parents were in
a low income category ($15,000 or less) and there was only one child, the
custodial parent had a higher standard of living after taxes. … If there were
two children, the parents had similar standards of living, and if there were
three or more children, the non-custodial parent had the higher standard of
living after taxes and payment of awards.”[29]
·
“[W]hen the non-custodial parent has a
low income, the average decrease in his or her income-to-needs ratio is further
than the custodial parent.”[30]
·
The authors analyze further the
situation where both parents are in the low income category. They find that prior to separation, the
family can manage – average household income is found to be 17% higher than
needs as defined by the “low income measure” that we are now familiar with from
the household standards of living test.
After separation, however, “the loss of economies of scale at marriage
breakdown reduces standards of living for both households; on average, the
custodial household has an income-to-needs ratio of 0.88, and the non-custodial household is even worse
off at 0.83.”[31]
·
The study did reveal that where the
non-custodial parent was in the high-income category, they did “enjoy very high
standards of living relative to their ex-spouses and children”.[32]
Recall that the data was gathered in 1991. We are now nine years later and under the regime of the Guidelines across Canada. Child support awards are now higher relative
to the non-custodial parent’s income, there is no tax treatment to child
support, and spousal support awards tend to be higher and for longer periods of
time. To what extent, and especially in
the case of low-income non-custodial parents, do we actually experience the
“feminization of poverty” as decried by Lenore Weitzman?
But popular myths do not die easily. One Canadian court acknowledged
that the Weitzman work was flawed, but it still accepted her analysis:[33]
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.
Contra:
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.[34]
(According to Carey Linde, data in the
above 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.
Contra:
While divorce represents a loss that 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.[35]
Myth:
Men are not
usually as capable of being custodial parents as are mothers.
Contra:
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.[36]
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.[37]
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.[38]
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.[39]
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.
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.[40]
Contra:
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.[41]
. . . 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.[42]
. . . 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.[43]
Myth:
Upon family breakup, young children will miss their mother more than
their father and therefore, young children should stay with their mother.
Contra:
Many studies show that children show no particular
preference for or problem with either parent staying or leaving.[44]
Children in stress or not
in stress showed no apparent preference for either parent.[45]
There was no difference in protest
following maternal or paternal departures.[46]
Little difference was found between
infant attachment to mom or dad.[47]
Myth:
We all
agree unequivocally that access denials form a miniscule part of our practices.[48]
Contra:
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.[49]
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.[50]
In response to the myth expounded above, the writer
responded as follows: [51]
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,
non-custodial 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
non-custodial 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.
Myth:
The
phrase, "rule of thumb" comes down to us from the age of patriarchy,
when husbands were allowed to beat their wives, as long as the stick were no
thicker than a man's thumb.
Contra:
According to etymologist Robert
Claiborne, writing in Red Herrings and Loose Cannons, a Book
of Lost Metaphors, the phrase actually derives from the age-old practice
of carpenters who would use the fact that the width of the male adult thumb is
approximately one inch; these workmen would then use their thumbs as
substitutes for rules (rulers); alternatively, early brewmasters checked the
temperature of their vats with their thumbs. So, any simple procedure yielding
approximate results came to be known as a "rule of thumb."[52]
Myth:
Male violence is
not treated seriously by the courts in Canada.
Contra:
Ontario Superior Court Justice, Mary Lou Benotto, wrote the following
in 1995:[53]
Domestic
abuse is abhorrent. I have never found
a judicial officer who treated physical cruelty with anything but the
seriousness it deserves. However, the
term ”abuse” has been diluted beyond all proportion. There is scarcely a separated spouse who does not believe that he
or she was in an abusive relationship.
Abuse is a powerful term. But it
is routinely used to describe shouting, badgering, voice raising, walking away
when angry. Think for a minute about
your private relationship. So as not to
raise a bald allegation, the particulars given of the marital discord become
very detailed.
Examine the
facts. Keep an open mind: No matter what
perspective from which one approaches family law matters, and in particular
custody and access issues, it should become readily apparent that there are
conflicting studies with respect to the roles of women and the roles of
men. Judges should not assume anything about anyone simply because of
gender. What is all important are
the actual facts of any particular case.
The same applies to lawyers who are interviewing clients and then
negotiating on behalf of the clients.
We should not assume anything simply because a client happens to be a
father, or a mother. We must be keenly
aware that we are influenced by many factors that profoundly influence us on
both the conscious and on the subconscious level. Accordingly, we all have to
be especially vigilant to keep an open mind.
PART 5:
PERCEPTIONS OF GENDER BIAS
Is there a perception ‘out there’ that men cannot be dealt with
equitably and fairly by the courts simply because they are men?
Prof. Robert Martin comments in Law Times (April 10, 2000, p. 8) that much of public policy appears
to respond to hysteria. So called
“deadbeat dads” are a prime example of a group that is not given a fair
shake. Martin concludes that: “…the
courts, just like any other institution, seem to get caught up in each wave of
hysteria.”
The editor of Money
and Family Law, Lorne Wolfson, writes in The Lawyers Weekly (January 14, 2000):
If the development of Canadian family law
is seen as a struggle between the rights and obligations of husbands and those
of wives, the past few years have seen few victories for husbands. In the view of many family law
practitioners, these days are bad for husbands.
Prof. James G. McLeod writes in a recent Reports of Family Law Annotation: [54]
“…it is not a good time to be a payor in family law cases.” In a 1997 annotation, Prof. McLeod writes:[55]
If anyone needed
proof that it is a bad time to be a husband or to represent a husband in family
law proceedings, the Ontario Court of Appeal reasons in Munro v. Munro should provide that proof. While many wives received
an inadequate share of family resources in the past, this is no longer the
case. The extension of matrimonial property legislation to include pensions and
business assets, the enactment of the Federal
Child Support Guidelines and the increase in spousal support ensure that as
a general rule a dependent spouse receives a fair share of the family
resources. It is submitted that in Munro
v. Munro the Ontario Court of Appeal went beyond ensuring that the wife
received a fair share of the family resources. The husband was ordered to pay
spousal support to a wife whose job and economic development were unaffected by
the marriage, with the result that she had more income than he.
…
In Munro v. Munro, the Court of Appeal
awarded support to a wife, notwithstanding the fact that there is no indication
in the reasons that her role in the marriage caused her any economic
disadvantage or provided any economic advantage to the husband. If the Court of
Appeal is correct in its conclusion, entitlement to support is not an issue any
longer. Every spouse who earns less than his or her partner for any reason is
entitled to support. The only issues are form, duration and quantum of support.
It would appear that Prof. McLeod is commenting somewhat
‘tongue in cheek’. One would be hard
pressed to find reported cases where a wife is ordered to pay spousal support
to a husband simply because the wife earned more than the husband. The problems addressed by Prof. McLeod
received ‘lighter’ treatment at the pen of lawyer-humourist, Marcel Strigberger.[56] In a satirical piece (see the article
attached to this paper) originally published in Law Times, Strigberger ‘reproduces’ a judgment where a very short
term live-in partner succeeds in obtaining a share of her lover’s property and
a substantial amount of spousal support in excess of the fellow’s gross
income. We chuckle when we read the
outrageous facts and the even more outrageous summaries of the legal positions
spouted, but we all know that within the satire lies a very significant grain
of truth.
In the newsletter published by the Ontario Family law
Section of the Canadian Bar Association, Toronto family law lawyer, Joanne
Stewart, recently published an entertaining and enlightening stream of
consciousness article on spousal support.[57] Ms. Stewart examines the former emphasis on
the “clean break” and acknowledges that in bygone days we tended to over
emphasize that aspect of spousal support.
Now, she says, “I think we’ve gone too far again.” She continues:
We
need to look at the family dynamic that confronts us and balance the equities
so at the end of the day, everybody has a life and everybody can reasonably
live with the life he/she had ended up with. … One needs incentive to get out
of bed in the morning and work, work, work.
…
In spousal support, as in
life, one cannot have it all. One needs
to reset one’s expectations, with compromise and balance as key determiners.
Bluntly, I think we’re
doing it wrong again. We’ve got the
pendulum stuck at the high end of the swing and we have to get it back to the
middle. The high end does the families
we try to serve a disservice because long term it creates trouble.
Ms. Stewart does not characterize the
pendulum shift in family law as a result of gender bias. However, she correctly pinpoints (in this
writer’s view) the perceived unfairness of the current system in the eyes of
many men. Men are doing much worse in
the family courts of Canada. Women are
doing much better. Often, the
distinguishing factor in the cases appears to be gender.
National Post columnist, Donna
Laframboise,
has written extensively on the plight of men who face gender discrimination in
the legal system. From examinations of
domestic assault to the role of women’s shelters in providing slanted evidence
in family court and their role in stereotyping all men, to suicide by men in
despair who have been crushed by the courts, to the issue of supporting adult
children, to examining the myth of the “deadbeat dad”, to men who are battered
by their wives, and much more – Ms. Laframboise has highlighted many of the
perceived problems in the system.[58]
Canadian Senator Anne Cools has been a very
outspoken critic of the gender bias that men face within our legal system. The senator has been concerned with lawyers
who inflame the atmosphere by helping their clients to hurl false allegations
of abuse at the other party. She has
reintroduced a bill in the Senate[59]
that would make it a criminal offence for a lawyer to knowingly deceive a
tribunal or to rely on false, deceptive, exaggerated or inflammatory documents
(this includes affidavits and pleadings).
In her speech to the Senate on February 17, 2000,[60]
the Senator described the many false allegations of child abuse that men are
often faced with. She cites nearly 50
reported Canadian judgments where a judge has said that the allegations were
false – most of them against men. In a
recent Senate speech, Senator Cools criticizes the Child Support Guidelines for the way they disregard the custodial
parent’s income and how the Guidelines
have “abandoned the objects of fairness and child-centredness.”[61] Senator Cools uses harsh words to describe
the effect of the Guidelines:
The evidence
indicates that the child support guidelines were never about the best interests
of children but were instead about a transfer of wealth from support-paying
parents, mostly fathers, to support-receiving parents, mostly mothers, under
the guise of child support.
The child support
guidelines used a design model intended to punish support-paying parents and
intended to drive non-custodial parents, mostly fathers, out of their
children’s lives, and reinforced the fracturing of relationships between
children and parents in divorce.
The child support
guidelines were bad economics, bad public policy and bad family law. That a purely feminist ideological theory on
economic relations between men and women should be constructed into regulations
under the Divorce Act, under the guise and title of child support, is a serious
matter and deserves study.
A search on the Internet will reveal
multitudinous examples of groups and individuals in Canada, the U.S. and
elsewhere who feel that the legal system discriminates against them simply
because of gender. Men and women alike
share this perception but obviously from different vantagepoints. (This is not to say that the debate divides
strictly along gender lines as one can find numerous women who support the view
that men are discriminated against, and vice versa.) The fervour with which they express their views is testament to
the strongly held views of both sides.
A Canadian site called, “Shared Parenting
Forum”, is full of material that bemoans the lack of equality experienced by
men in the judicial system. One part of
that web site is specifically dedicated to “Gender Bias”.[62] A recent review showed 62 separate entries,
many with sub-entries. This is only one
very small segment of the material that is available. There is a very strong perception on the net and in a wide body
of literature that the system is stacked against men.
There is a wide spread perception that men
are stereotyped, that they do face discrimination and bias within the family
law system. There is a feeling that
attitudes need to be changed and some would maintain that even legislation has
to be changed.
PART 6:
CASE LAW EXAMPLES OF GENDER BIAS
Child Support Guidelines: Gender sometimes appears to be the distinguishing factor in similar
cases under the Child Support Guidelines.
Unusually high expenses
to exercise access to a child, can be a factor to find “undue hardship”. In one
case,[63]
spending 10% of the non-custodial father’s income of $43,000.00 to exercise
access was found not to constitute undue hardship. However, in another case,[64]
only 5.6% of the non-custodial mother’s annual income of $64,000.00 was held to
qualify her to make a successful undue hardship argument.
In Petrocco v. Von Michalofski,[65]
the NCP mother had employment income of $27,650.00. The table amount would have
been $516.00. This was contrasted with
the father’s income of $90,000.00 (and the court noted his second wife’s income
of $207,000.00). While the judge (Métivier, J.) did admit that the
income discrepancy “alone does not necessarily constitute a hardship to the
person with the lower income” (at paragraph 19), a reading of the entire
decision cannot help but leave one with the impression that it did have a
significant influence. The undue
hardship claim was allowed and the mother was required to pay only $150.00 per
month. The trial judge noted [paragraph
20] that the mother had been “financially denuded as a result of the separation
and the breakdown of her health.” This could apply to many NCP fathers. If the genders had been reversed, it is
doubtful that a male NCP would have been treated as compassionately.
Contrast Petrocco
with Pilotte v. Pilotte[66]
where Little Prov. J. considers a case of joint custody with each parent
retaining primary residence for one child.
Father, whose income was $72,000.00, was paying spousal support of
$8,769 to mother who had an income of $37,508.00 plus the spousal support. Father argued that requiring him to pay
child support to the mother would work an undue hardship upon both him and upon
the daughter who primarily resided with him.
Judge Little finds such arguments to be without merit. These are the same sort of arguments that
the non-custodial mother successfully used in Petrocco.
Non-custodial and split custody mothers appear to do
better than non-custodial fathers. In Martin v. Gerard,[67],
Justice Kozak allowed the NCP mother with less than one half the income of the
father to pay absolutely no child support instead of the Guideline table amount of $379.00 per month. Contrast Martin v. Gerard with Paul v. Pisio,[68]
where the father, having an income of almost $40,000.00, argued two points in
support of his undue hardship claim.
Firstly, he would have to incur travel costs of $600 per year to
exercise access. Secondly, he had a legal duty to support his new wife, his new
son and his stepdaughter. The father ‘s
claim was turned town on all accounts.
In the split custody case of Scharf v. Scharf,[69]
the mother improved her position to the detriment of the father. This father enjoyed only marginally more
income than the mother. In MacLeod v. Druhan,[70]
Gass, J.F.C. similarly demonstrated compassion for a split custody mother who,
on an application of the table amounts, would have received from the father
$146.00 monthly. Instead, the judge
ordered the father to pay $236.00. The
basis for this decision was that “the amounts in the table do constitute undue
hardship for the mother and daughter in her care.”
Not all NCP fathers are turned down, however. See Baryani
v. Longe,[71] where the
NCP father had income of only $1,330.00 per month. The father argued that in order to have the children with him on
access, he would have to have decent accommodation. Therefore, he could not afford the table amount of $236.00 for
two children. The judge accepted this
argument and reduced monthly support to $50.00 per month.[72]
In Camirand v. Beaulne,[73]
Justice Aitken considered the situation of a NCP father who was obligated to support
his child from a second marriage. The
father’s income was $64,773, which translated into a standard table amount for
three children of $1,145.00 per month.
He had leased a car so that he could travel to see his children and to
travel some distance to attend their hockey games. In responding to the father’s undue hardship claim, the judge
answered that these debts were “not unusually high, nor are they the only way
in which he can facilitate access to his children” (paragraph 43). Justice Aitken finds that the father will
suffer hardship but that such hardship would not be “undue”. In what appears to be a slight castigation
of the father for having more kids and trying to get on with his life, the
judge states as follows (paragraph 44):
Knowing he had three
children to support, he made the decision to have a fourth. He
also made the decision to purchase a home, instead of choosing less expensive
accommodation. His new spouse is
choosing to work on a part-time basis to be available for their child. None of these steps were mandatory steps in
the sense that they were beyond the Respondent's control. It is perfectly understandable why the
Respondent would want to do everything he has done; however, these choices
carry costs. It is not for the Applicant
to forego the child support Parliament has determined she is entitled to
receive for the support of the three Beaulne children in order to help the
Respondent support his youngest child and enable his second spouse to work on
only a part-time basis.
What this case appears to
say is that it is against public policy to procreate after you have already had
children with your first spouse. The
case appears to state that children of the first marriage take precedence
before children of the second marriage.
Furthermore, Justice
Aitken accurately quoted other cases where a very stringent view was taken as
to under what circumstances an undue hardship application could be entertained.[74]
However, in a case that this justice
decided only one month later,[75]
the learned justice appeared to change her tune. Here the judge was compassionately addressing the predicament of
a non-custodial mother who had just given birth to twins with her current
partner. Accordingly, her income had
decreased to maternity leave benefits, and her partner earned a modest income
of $32,450.00. Justice Aitken
contrasted this state of affairs with the custodial father who was had just
moved to California where he earned $70,000.00 U.S. The judge finds that total income levels are higher in the
custodial father’s household (and the judge does not use the household
standards of living test found in the Schedule) and then she baldly states as
follows:
[para10] Considering Ms. McColl's responsibilities
to provide support for three children in addition to Katie, I find that it
would create undue hardship for her to pay child support to Mr. Hughes on
behalf of Katie at this time. It is
preferable if she could use the funds she otherwise would provide to Mr. Hughes
pursuant to the Table amount under the Guideline to facilitate her keeping in
contact with Katie and to facilitate Katie having a continuing relationship
with Ms. McColl's other children.
The reasoning in the second case is entirely
inconsistent with the judge’s ruling in the first case. The key distinguishing factor is the gender
of the custodial and non-custodial parent.
This same judge would not allow a male non-custodial parent any relief
in another earlier decision[76]
even though that parent also had a child from another relationship, access
costs to visit with that child, and another child imminently due with his
current spouse. Gender clearly plays a
key role in determining the result.[77]
This writer has no difficulty with judges showing compassion to a
NCP mother and her three children with her second spouse. Indeed, this writer fully endorses the
court’s compassionate approach. On the
other hand, please consider this: Ask yourself how many cases you have read
about, experienced yourself, or have seen gone down while you wait in motions
court, where men similarly situated have their undue hardship claims dismissed
summarily.
A careful reading of section 14 of the Guidelines would appear to indicate that
the mere coming into force of the new child support scheme would be sufficient
to ground an application to vary child support. It should not matter whether that variation would yield a higher
or lower number. Section 14 states:
Circumstances for
variation — For the purposes of
subsection 17(4) of the Act, any one
of the following constitutes a change of circumstances:
(a) in the case where the amount of child
support includes a determination made in accordance with the applicable table,
any change in circumstances that would result in a different child support
order or any provision thereof;
(b) in the case where the amount of child
support does not include a determination made in accordance with a table, any
change in the condition, means, needs or other circumstances of either spouse
or of any child who is entitled to support; and
(c) in the
case of an order made before May 1, 1997, the coming into force of section 15.1
of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada,
(1997).
Subsection
17(4) of the Divorce Act states:
Factors
for child support order — Before the court makes a variation order in respect
of a child support order, the court shall satisfy itself that a change of
circumstances as provided for in the applicable guidelines has occurred since
the making of the child support order or the last variation order made in
respect of that order.
The Saskatchewan Court of Appeal had no problem with
reading these provisions according to their plain meaning.[78]
Other courts[79] have gone
through amazing machinations to come to the conclusion that section 14 ( c ) of
the Guidelines does not mean what it
clearly says. Indeed, one Ontario judge[80]
had a very difficult time reading any sense into precedent but in the end, she
felt bound by the doctrine of stare
decisis to follow the lead of the province’s appeal court.[81] The Guidelines
were supposed to bring predictability and uniformity to child support. One is left with the impression that these
goals apply only when the custodial mother seeks to raise the amount of child
support on the basis that May 1, 1997 has come and gone. When the NCP father seeks to lower the
amount of child support, relying on the same grounds, then all of the sudden
section 14 ( c ) does not really say what the plain language says it says. It is difficult to find any logical reason
for courts to destroy the legislative scheme as they have done. One is inextricably led to the sad
conclusion that courts will apply the standard table amounts where the
custodial parent will receive more money but not apply the standard table where
this would yield lower net amounts of child support.
Spousal support
and property: It is not only Guidelines cases that evidence gender bias. Spousal support and property cases sometimes
also appear to reflect a degree of gender bias. Prof. James McLeod writes:[82]
After an initial flurry, courts don't seem to feel the need to
justify their decisions by reference to Bracklow
v. Bracklow (1999) 44 R.F.L. (4th) 1 (S.C.C.). Take Court v. Cudmore, [2000 CarswellPEI 41
(P.E.I. T.D.)] where DesRoches, J. held that a husband wasn't entitled to
support because he couldn't prove he suffered any economic disadvantage from
the roles adopted in marriage. No talk of Bracklow
or dependency or contractual support. Could
it be that husbands don't have the same support entitlement as other spouses?
…
The wife was awarded an
unequal division of property [in Court v.
Cudmore] because the husband didn't pull his weight. No abdication mind
you. Just not pulling his weight. You won't find many cases to support this
interpretation of the Family Law Act
in Ontario or P.E.I. (we have essentially the same Act). Or do husband's have different property rights as well as different
support rights?
Had time permitted, this writer would have liked to
explore in this paper the development of the law of spousal support over the
last twenty years in Canada. We would
perceive that there have been significant changes and that men, except for a
very brief period in the late 80’s and very early 90’s, have not faired too
well. Especially where one combines
child support with spousal support, I dare say that courts by and large have
given quite short shrift to the man’s ability to pay while still providing for
himself and for the children when they are with him. In add |