“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? One of the main ones is a good news story: most couples separate amicably, A family law attorney who advocates for men and fathers is necessary to have by your side, especially in a family court system that shows biases toward mothers, according to a recent study. The Ontario Court of Justice does not hear divorce or property matters arising from a family breakdown. But that was not the worse of it. Gender bias does not mean that a man is faced with an order he does not like or does not think is fair. 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. [Many of the sources referred to here have been culled from an excellent paper by Carey Linde: A Case for Fathers and Co-parenting. The Ontario Court of Justice has jurisdiction over child protection, adoption, custody, access, child support, and spousal support. Like our own Child Support Guidelines, this research also fails to consider the non-custodial father’s spending on the children. 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. Mothers have closer bonds with children, particularly those of tender years. 110, unreported, digested at  A.J. L. Rev. 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. Seriously, if father's are interested in equal parenting time after divorce, why are the majority of … 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. 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. A latent influence that disturbs an analysis.”. However, in the area of the family court, particularly child custody laws, change has been lacking and complicated. 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. She had no skills and no job prospects. Public education is much more important. The societal trend is and must embrace pay equity given our fundamental right to equality which is entrenched in the constitution. [Guardianship of Infants Act, 1886, 49 & 50 Vict., c. 27] In Canada, by the 1920’s, judicial maternal preference was clearly established. We need you. Primary custody is a pivotal issue for parents involved in a divorce, and there is a common myth that a gender bias exists in the courts when primary custody is at issue in the case. [See: Anne P. Mitchell: The Hypocrisy of ‘Equality’ in a Family Law Context, reproduced at: http://www.backlash.com/content/gender/1995/5-may95/page15b.html. I heard from heartbroken grandparents in Alberta. The emperor has no clothes! Years ago, mothers were expected to do one thing: be mothers. Indeed, further studies show that at best Weitzman was innocently mistaken. Their grandson had been subjected to second hand smoke, causing his asthma to severely worsen. ], 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. 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. Patriarchy affects how custody battles are eventually ruled – and not because the court is particularly in favor of women. (3d) 577, 164 D.L.R. 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?”. 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. Carey Linde Vancouver family lawyer "There is an inherent bias in the system. So let us now turn to Justice John Goodearle in Banks v. Banks, [unreported, 19 December 1986, digested at  W.D.F.L. In family law, more than any other area of the law, judges have a huge amount of discretion allowing ample opportunity for biases that we all as human beings have. Would that more judges take notice of Justice Goodearle’s comments! The courts have endeavoured to alleviate this discrimination with the use of male or female wage tables modified by either negative or positive contingencies. 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. 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. Eng. 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. Is Gene C. Colman the Right Lawyer for You? 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. 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. 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. ], ” … stereotypes about the nature of men, women, and children have dictated custody decisions throughout history. [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. According to Julie Artis (2004), “no issue is more subject to personal bias than a decision about which parent is „better‟” (p. 769). 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. What can we do to ameliorate the injustice? Justice Goodearle begins the most important part of his joint custody decision by stating [pp. Men and women have to go to family court to resolve family-related disputes, including disagreements over child custody and child support. The husband earned approximately $65,000.00; the wife earned less than $20,000.00. Do only lawyers have the right to comment on judge’s decisions but then only in academic law reviews? $34 Billion in child support goes unpaid every year. 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. 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. As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks,  1 S.C.R. Fathers in divorce get primary residential custody only 2.5% of the time. $5.8 Billion in child support was unpaid in 1992 (the last year for which figures are available). 13, No. But should we expect any more balance from assessors than we currently do from judges and lawyers? The New Collins Thesaurus  gives the following synonyms for “bias”: ” n. 1. Equal Shared Parenting: Thought Of The Day, Spousal Support And Child Support Obligations, Religion, State, Gender Equality, and Damages for Court Order Breach. 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. 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. There is so much to say and unfortunately, we cannot spend hours upon hours. 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. You were always accessible during the preparation of my case and prior to court appearances. Should not these important and just principles be applied across the board? Where the case becomes interesting for those concerned with gender bias and stereotyping is the additional judgment proffered by Madam Justice L’Heureux-Dubé. The presumption that women are more fit for parenting, or that they require more financial support than men is simply unfair and unjust. Child support was fixed at $300.00 per month for four kids. 198 (Nfld U.F.C. This specious and false allegation is thoroughly demolished in Cynthia McNeely’s article [Section III]. The Equal Opportunity Commission, the Government's own anti-discrimation agency have stated they are fully aware that men are being discriminated against in the Family Law Court based on gender alone, but have stated that the Family Law Court is immune from this agency and all others. Many studies “point out gender bias in the system at large against women,” she said yesterday. She received a sentence of only two and one half years. The courts must see who is the better parent, for the children, and not just because that parent is a woman. It is consistent with the Charter and it probably strikes a responsive cord amongst most lawyers and judges. 5 October 1998, Johnstone, J.] We need research. 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. All I want is what is fair, that is all any good father wants. Can any even handed and open minded jurist in this country argue that these principles should apply only to sexual assault cases? 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? 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. No. I maintain that “gender bias” is indeed a reality in Canada’s courts (as well as in the other common law jurisdictions). Bias against men in family courts could be gender discrimination. 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. 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. Gender bias has touched many; that is clear. Tonight, I will attempt to address some of these questions. However, it is questioned whether the court system is biased against men in matters involving custody and access to children when family breakdown occurs. 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 would like to see organizations like FACT and the National Shared Parenting Association keep up the struggle for gender equality within our family courts. To examine gender bias in the court, we first need to understand how gender roles play out in a family unit and what happens when a custody dispute disrupts this dynamic. There was no spousal support. The Supreme Court Standing Committee on Fairness and Diversity was established to help advance the State Courts System’s efforts to eliminate bias from court operations that is based on race, gender, ethnicity, age, disability, financial status, or any characteristic that is without legal relevance. All rights reserved. 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? And that is as it should be! ], There was no difference in protest following maternal or paternal departures. In fact, perceived bias against men in family courts has, in large part, provided the so-called “Men’s Rights Movement” with momentum. © 2020 by Gene C. Colman Family Law Centre. Regardless of its genesis, the cost of gender bias is great. 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. Gender Bias in the Family Courts of Canada: Fact or Fantasy? Shattering the myths of divorce, a man and you can fill that in ] to their mothers our ability... Surfaced that if a woman court threw out all of the bias is a struggle to achieve true gender in! To Patriarchal Power ( 1989 ), 3 CJWL 33 ] i honestly believe to be comment... Start off that way then goes on in our courts B. Kelly the! 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