(Faludi, Susan: “Backlash: The Undeclared War Against American Women”, Anchor Books, Doubleday, 1991.) U.F.C)]. Still, there is much research that needs to be undertaken in order to provide strong empirical evidence that the bias exists. Court cases must be decided upon the real evidence and not on myths. 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? We have assisted countless dads in asserting their fathers’ rights in Toronto and throughout Ontario. I thank you for listening [or reading] and I welcome your questions and comments. 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. Any man that has gone through the system will laugh at the suggestion that there is no gender bias. Legislation should not discriminate on gender grounds. It is consistent with the Charter and it probably strikes a responsive cord amongst most lawyers and judges. I believe that there is. Bent, bigotry, favouritism, inclination, intolerance, leaning, narrow-mindedness, one-sidedness, partiality, penchant, predilection, predisposition, prejudice, proclivity, proneness, propensity, tendency, turn, unfairness. Liberal M.P. In the Edmonton father’s case, his daughter ran away to him but no one listens. 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. To discuss your situation in greater detail, contact our Toronto family lawyers online or call 1-888-389-3099. Patriarchy affects how custody battles are eventually ruled – and not because the court is particularly in favor of women. Fathers in divorce get joint physical custody only 4% of the time. The Ontario Court of Justice does not hear divorce or property matters arising from a family breakdown. I have found that a number of Provincial Division judges grant such orders without there being any notice to the father. © 2020 by Gene C. Colman Family Law Centre. L. Rev. 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. Do not just assume defeat based on gender! 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. 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. Some judges tend to favour women during divorce and child custody disputes. 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. While this decision is relevant for employers and workers in B.C., the fact that the Supreme Court of Canada upheld a high bar in family status cases will surely impact future cases across the country. The Massachusetts Supreme Judicial Court Gender Bias Task Force also uncovered substantial evidence of gender bias against mothers in family courts. ): 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. Communicating that to the court, where time is precious and the chance to talk is limited, is not easy – especially when the other side is presenting a different picture. H.C.); Linton (1988), 11 R.F.L. I heard from heartbroken grandparents in Alberta. The emperor has no clothes! 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. Disclaimer | Site Map Privacy Policy | Business Development Solutions by FindLaw, part of Thomson Reuters. So let us now turn to Justice John Goodearle in Banks v. Banks, [unreported, 19 December 1986, digested at [1987] W.D.F.L. Time doesn’t permit me to read his entire two page single spaced email. Each time she asked for attorney’s fees, the court denied them, until finally she was forced to give up and accept an unfair settlement. 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. GENDER BIAS IN CHILD CUSTODY DECISIONS. His words are from the heart. 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. 1, January 1992]. ], “Park and Sawin found that fathers fed their babies as effectively and efficiently as did their spouses. “Our research contradicted the perception that there is a bias in favor of women and that in determining custody and visitation, many judges and family service officers do not consider violence toward women relevant. In other words, in my view, the Court of Appeal is striking a needed blow in favour of gender equality. The response was gratifying, yet depressing. This was when I was on my own after losing my first lawyer because of lack of money. $5.8 Billion in child support was unpaid in 1992 (the last year for which figures are available). 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. NJEP State Task Forces. 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?”. We will be talking about discrimination. However, it is questioned whether the court system is biased against men in matters involving custody and access to children when family breakdown occurs. Weathagirl March 19, 2017 at 9:53 pm. 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. Since Brooks there has been even greater accommodation of the parental needs of working women. There was a troubling news article that came across my desk [Paul McKie, The Canadian Press, printed in the National Post, February 24, 1999]. Mothers get primary residential custody 93.4% of the time in divorces. $34 Billion in child support goes unpaid every year. 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. What doesn't seem reasonable is the noise that the Men's Rights movement makes about gender bias in Family Court, not based on the statistics above, anyway. … On appeal, the idea also surfaced that if a woman is not modestly dressed, she is deemed to consent. 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.”. Decided in December 1986, the case is the family law parallel to the above personal injury damages case. In my own practice, I see my clients being subjected to gender bias. 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. 13, No. Child Custody Gender Bias in the Family Court System. I speak only for myself. 10, October 1998, page 75;], I point out how men and women similarly situated are treated quite differently. For many men, the prospect has become so fearsome they are turning their backs on getting married in the first place — and avoiding what they see as the bear trap of long-term commitment to women, kids, and family. [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. Since Brooks there has been even greater accommodation of the parental needs of working women. The law requires the court to prioritise ‘the need to protect the rights of children and to promote their welfare’. [Id. 147, 2 A.C.W.S. I always have to have a special fact situation in order to have a good chance at getting custody. [Joan B. Kelly: The Determination of Child Custody, Children and Divorce, Vol. All rights reserved. ” 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. 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%). 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. There is so much to say and unfortunately, we cannot spend hours upon hours. Are you aware of how the media reinforces a bias against men by perpetuating certain negative images and stereotypes of men? ” A judge's unbiased behavior and insistence on the same from others in the courtroom is the most effective way of eliminating gender-biased behavior. 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. Like our own Child Support Guidelines, this research also fails to consider the non-custodial father’s spending on the children. “Fathers who have sole custody echo the complaints of mothers with sole custody. (4th) 13, 182 A.R. Many studies “point out gender bias in the system at large against women,” she said yesterday. 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. Here’s what you should know: Custody […] Women can say and do what they want and the fathers pay for it. Is there gender bias in family court? We are told that eradicating stereotypes is an important task to accomplish. By 1886 in Britain, mothers officially obtained rights equal to those of fathers in regard to court ordered custody. 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. 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. The intimidation problem is certainly not restricted to criminal law. Moreover, questioning the merits of legislation and lobbying government for change is an inherent right in our democratic society. Child Custody Gender Bias in the Family Court System. Gender Discrimination in Ontario Family Courts: #1 public policy failure in Canada today It is really too bad that in a progressive society with a Charter of Rights and Freedoms - the envy of the world - that grave injustices frequently occur to parents and children. Indeed, when we stereotype a group based upon preconceived notions, we tend to ignore the actual evidence staring us in the face. Common sense tells us that everyone’s standard of living suffers. 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. But then I started to think about my own twenty years experience as a family law lawyer. 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. Many witnesses pored out their hearts to the Special Joint Committee. 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. Women suffer a legislative and practical disadvantage in Canada’s family courts. Irrational preference or prejudice.”. Some remarks appeared to advocate “You dead beat dad! Justice Johnstone states: “As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. Traditionally after a divorce, a man financially supported his former wife, but that is changing. “Gender Bias” is not exemplified, I must emphasize, where a man loses a court case. 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. Family Court Review is the leading interdisciplinary academic and research journal for family law professionals. Children do not bond to fathers as closely as they do to their mothers. He urged me to challenge the law. Dr. Warshak is author of “The Custody Revolution – The Father Factor and the Motherhood/Mystique”. Click Here: http://www.FathersHelpHotline.com to order The Fathers Rights Protection System or The Audio Gold System. All of this makes eminently good sense. The supervisor had argued that the GM plant is a rough place where rough language and sexually suggestive banter is common place. Family Court Review is the leading interdisciplinary academic and research journal for family law professionals. Mothers have closer bonds with children, particularly those of tender years. That same dictionary defines “bias” as follows: ” 1. mental tendency or inclination, exp. 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. (3d) 444, 29 E.T.R. 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. The best interests of a child normally lie with the “primary caretaker” to whom custody should normally be awarded. 129, there have been profound changes in women’s labour force participation. From custody and access issues to spousal support, we must ensure our system is unbiased and incorporates procedural fairness concerning gender roles. Angle, cross, diagonal line, slant ~ v. 3. 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. 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. That is the economic reality of separation and divorce that my twenty years experience demonstrates. The presumption that women are more fit for parenting, or that they require more financial support than men is simply unfair and unjust. 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. 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.”. Enough is enough! (4th) 278 (Ont. EVIDENCE OF GENDER BIAS IN THE FAMILY COURTS. Until the statistics tell us that more than 4 percent of divorced fathers are seeking custody through the Family Court system, there are few men who have such experience and proof of a true "gender bias." Gender neutral couples have two children, regardless of child gender, while the gender biased parents stop after they have a boy or two children, whichever comes first. The court is only making a decision in about a third of all divorces in Canada, so most of those arrangements are not court ordered. Next case.”. This self defeatist outlook feeds into the stereotypes and perpetuates injustice. (In the worst cases of “gender bias” the actual facts are not “interpreted”; the facts are actually ignored.). 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. 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. Let us examine some of that “wisdom” of the past against the mounting volume of social science research evidence. What can we do to ameliorate the injustice? 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. No wonder that the Fredericton lawyers jumped to the defence of the their Family Court judge! Findings show that when given this opportunity and encouragement, fathers are just as sensitive and responsive to infants as mothers are. The Ontario Court of Justice has jurisdiction over child protection, adoption, custody, access, child support, and spousal support. [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. In fact, perceived bias against men in family courts has, in large part, provided the so-called “Men’s Rights Movement” with momentum. A prime example of such legislation would be the Child Support Guidelines. committee), but for effective legislative remedies as well.”. A latent influence that disturbs an analysis.”. I suspect that they did not appreciate the full impact of their words. 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. Increasingly, divorced fathers across the country have long expressed concern about a systemic bias in family court. The time for polite silence has long passed. Abuse is not excusable under any circumstances. I call upon all those involved in our legal system to meet the challenge. Toronto psychologist and custody assessor, Dr. Marty McKay testified [page 16]: My finding is that there are a lot of nurturing fathers out there. She then launched into a particularly vicious personal attack on Alberta Court of Appeal Justice McClung. 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. I maintain that “gender bias” is indeed a reality in Canada’s courts (as well as in the other common law jurisdictions). C.A. [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. (Authority cited: Current Population Reports P23-163 U.S. Dep’t of Commerce, Census Bureau), 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. Whistleblower Lawsuit: Age, Gender Bias In Howell Municipal Court Nicole Rosenthal 8/27/2020. 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. 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)]. I cannot apply a flawed process which perpetuates a discriminatory practice. She had no skills and no job prospects. Gender bias does not mean that a man is faced with an order he does not like or does not think is fair. 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. One dictionary [The New Collins Concise English Dictionary, 1982] defines “gender” as “all the members of one sex”. 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. Is there a particular problem with gender bias in Canada’s Family Courts? It makes sense, doesn’t it? To protect your rights and fight gender bias in Ontario courts, contact Gene C. Colman Family Law Centre. 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. Child support was fixed at $300.00 per month for four kids. Some of that testimony comes through in the Joint Committee Report; more of it was posted on the internet. It is the responsibility of litigants and their legal counsel to properly present the evidence and the authorities that challenge the myths. I would just like to close now with another quote from that father in Edmonton. 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. 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. 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. To protect your rights and fight gender bias in Ontario courts, contact Gene C. Colman Family Law Centre. Communicating that to the court, where time is precious and the chance to talk is limited, is not easy – especially when the other side is presenting a different picture. What Changed Between 1992 and 2015? 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. 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. ], 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. “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? The study A study was published in the European Journal of Social Psychology that examined the role of gender stereotypes in child custody decisions. Tonight, I will attempt to address some of these questions. [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. The decree of the Family Court can be executed in accordance with the provisions of the CPC or Cr.P.C., as the case may be. (1839), c. 54 (U.K.) – known as Lord Talfourd’s Act.] [Edward Kruk: Psychological and Structural Factors Contributing to the Disengagement of Noncustodial Fathers After Divorce, Family and Conciliation Courts Review, Vol. 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. 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. 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. In our democratic system, do not citizens have the right to publicly comment on public pronouncements made by non elected officials, by judges? 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. 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