How can it be that a women can cry abuse and it is so, but when a man has proof of a women actually doing it, that there is never enough proof. One level headed jurist [Justice Cecelia Johnstone of the Alberta Queen’s Bench, in MacCabe v. Westlock Roman Catholic Separate School District No. It can be argued that, when deciding custody and visitation, a court gives the best interests of the child the highest priority and not gender (Levin ; … But when men are subject to equally objectionable stereotyping, then this passes as science or common sense. Let us start with a story – a true story as I understand it. (2d) 18, 49 D.L.R. 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. Individuals have the benefit of a process which permits them to complain about the conduct of a member of the judiciary. Lately, women who feel that fathers get "joint custody,” even "shared parenting," no matter what, feel that it is has become biased in favour of men. Much of my work is helping women through the revolving doors of the legal . 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. I would like to see Senator Anne Cools cloned about 200 times over and have 150 of those clones elected to the House of Commons and 50 of them placed in the Senate. the family court iin concise and simple containing the point for determination decision and the reason for the same. “You dead beat dad! Once again if the contingencies are gender specific, then the contingencies applicable to males shall be used except in the case of life expectancy, for obvious reasons. GENDER BIAS IN CHILD CUSTODY DECISIONS. For most of us, it is a struggle to maintain mortgage payments, debt payments and other responsibilities. We all know what gender means. (1839), c. 54 (U.K.) – known as Lord Talfourd’s Act.] The plaintiff (GM supervisor) had sexually harassed a number of his female workers and was, I would suggest, quite properly sacked. I suggest that when a citizen simply states, in his or her pristine innocence, and when a lawyer simply states in his or her not so pristine innocence, that ‘the emperor has no clothes’, then the communal reaction ought to be: “My dear, let us examine our previous views to see whether or not the emperor indeed has no clothes.”. Our lawyers explain that just because women are considered culturally better at parenting than men does not give the court a legal right to award more child custody rights to the mother unless there are facts proving that the child’s best interests would be met if he or she remains to live with the mother. Being just “normal dad” will not suffice. Justice Goodearle begins the most important part of his joint custody decision by stating [pp. The presumption that women are more fit for parenting, or that they require more financial support than men is simply unfair and unjust. Enough is enough! 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. Nearly 20 years later, many of the now self-represented litigants make these same complaints. 41 (Alta Q.B. 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. The judges themselves are attacking stereotypical assumptions. There are women who are married to very wealthy individuals; these rich guys tend to abuse the court system with their high priced counsel in order to pound their wives into submission. Are you aware of how the media reinforces a bias against men by perpetuating certain negative images and stereotypes of men? 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. “, “But Your Honour, if you will turn to page two of my affidavit, you will see that I lost my job three months ago and I have been caring full time for my elderly father who has been diagnosed with a terrible life threatening disease. The time for polite silence has long passed. Many studies “point out gender bias in the system at large against women,” she said yesterday. (Md) 544]? Justice Johnstone states: “As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. Another theory behind some of the gender bias we’re seeing in the court system relates to a mother’s expectations. Indeed, further studies show that at best Weitzman was innocently mistaken. There was no spousal support. Family of Tuskegee Syphilis Study participant say they’ll take COVID-19 vaccine. “Oh, you’re just a man; you don’t have a chance of succeeding in court.” Well, the Ontario Court of Appeal has issued the wake up call. 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. There is ample evidence. 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. 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.”. 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. She had no skills and no job prospects. We certainly need proper statistical studies. (3d) 444, 29 E.T.R. The response was gratifying, yet depressing. Where are you? The wife paid full retail value for the husband’s share in the matrimonial home. Rob – Hamilton, Ont. In our democratic system, do not citizens have the right to publicly comment on public pronouncements made by non elected officials, by judges? So let us now turn to Justice John Goodearle in Banks v. Banks, [unreported, 19 December 1986, digested at [1987] W.D.F.L. The study A study was published in the European Journal of Social Psychology that examined the role of gender stereotypes in child custody decisions. They no longer, however, find a place in Canadian law. 25:891 today.11 In no greater sphere do these outdated gender roles persist than in our nation’s family court system.12 There, the state frequently not only denies the capability and desire of many men to participate actively and meaningfully in the care of their children,13 but also perpetuates the subjugation of women as mothers by deeming them “No empirical evidence supports the distinction between primary and secondary caretaker after age five, as children’s greatly increased social, cognitive, and emotional maturity creates changes in the meaning of attachments and parent-child relationships to the child.” (Emphasis added.) Breadcrumb Trail Links. Our lawyers explain that just because women are considered culturally better at parenting than men does not give the court a legal right to award more child custody rights to the mother unless there are facts proving that the child’s best interests would be met if he or she remains to live with the mother. 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 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? 23-24]: Section 16. Vancouver family lawyer "There is an inherent bias in the system. All of this makes eminently good sense. Women can say and do what they want and the fathers pay for it. (4th) 278 (Ont. He stated: It is clear that the feminist influence has amounted to intimidation, posing a potential danger to the independence of the judiciary. As soon as his custody trial was over, he was arrested yet again and that charge was thrown out too. I should emphasize that my firm belief is that the very large majority of judges in Canada have no intention to discriminate upon grounds of gender. We all know that from our everyday experience. Toronto lawyer Michael Day is quoted at page 15: When I go to court with a male client who is looking for custody, it’s always an uphill battle. Once lawyers fail to meet the needs of a significant portion of their clientele, then it is high time that someone spoke out on the needs of those who are often not adequately serviced by the legal profession. This problem is the subject of a Charter challenge that I currently have the privilege of conducting on behalf of a very dedicated and idealistic client. Or, how about this one? Weitzman just has to be wrong! 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? You have not paid your support for three months! Myths pervade our general culture and it is therefore understandable that judges who decide real live cases may also be influenced by stereotypes. No. Dad was told by many, including judges, that the abduction by mom would play no part in a determination of custody! Time doesn’t permit me to read his entire two page single spaced email. We will be talking about gender stereotypes. Since Brooks there has been even greater accommodation of the parental needs of working women. They are all part of the problem. Like our own Child Support Guidelines, this research also fails to consider the non-custodial father’s spending on the children. I speak only for myself. In fact, perceived bias against men in family courts has, in large part, provided the so-called “Men’s Rights Movement” with momentum. These percentages are consistent with a 1989 study conducted for the Massachusetts Supreme Judicial Court on Gender Bias [Gender Bias Study of the Court System in Massachusetts (1989) reprinted in 24 New. A gender bias argument should not be used by a divorced father unless he has personal experience and can back up that experience with proof. The Effects of Gender In the Federal Courts: The Final Report of the Ninth Circuit Gender Bias Task Force , 67 S. Cal. Her Honour states: “I cannot apply a flawed process which perpetuates a discriminatory practice.” Could such a sentiment … could such a noble and just sentiment be applied in child custody law? She stammered and said: “Well, it’s more of a general philosophy than a policy”. In other words, in my view, the Court of Appeal is striking a needed blow in favour of gender equality. I heard from a father in Edmonton – a heartbreaking and heartrending story. [Id. The Code was amended in 1983 and in 1992 to eradicate reliance on those assumptions; they should not be permitted to resurface through stereotypes reflected in the reasons of the majority of the Court of Appeal. This is in contrast to the woman of yesteryear who participated in a traditional marriage which recognized her as the nurturer and homemaker and her husband as the bread-winner. While this may be a common belief “on the streets,” in my experience it is not something that holds true. Great Britain and Canada were a little slower to grant women more rights in this area. Our highest court, the Supreme Court of Canada, has recently rendered a decision that has sparked unprecedented controversy across the land and has led to calls for the dismissal of an eminent appeal justice from Alberta and of Madam Justice L’Heureux-Dubé of the Supreme Court [ R. v. Ewanchuk, unreported, digested at [1999] S.C.J. It is the job of lawyers and it is the job of FACT and other similar groups, to gather the evidence that is already out there and forcefully, cogently and logically challenge the “wisdom” of the past. Here’s what you should know: According to Julie Artis (2004), “no issue is more subject to personal bias than a decision about which parent is „better‟” (p. 769). Distort, influence, predispose, prejudice, slant, sway, twist, warp, weight. The husband earned approximately $65,000.00; the wife earned less than $20,000.00. Presentation to Fathers Are Capable Too ( F.A.C.T.) 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. There was a time when women as a group were not being treated fairly; that was wrong and it has now been largely remedied. I do not necessarily reflect the views of FACT (although no doubt many of you will welcome much of what I say); I do not purport to speak for the bourgeoning non-custodial parents’ movement that is very quickly gaining prominence across North America and rapidly attracting the attention of members of provincial, federal and state legislatures. Such stereotypical assumptions find their roots in many cultures, including our own. [See: Anne Marie Delorey: Joint Legal Custody: A Reversion to Patriarchal Power (1989), 3 CJWL 33]. ” 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. 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. 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. I thank you for listening [or reading] and I welcome your questions and comments. GENDER BIAS IN CHILD CUSTODY DECISIONS. 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. A proper interpretation of the data revealed the following analysis: These statistics fly in the face of the common feminist wisdom that fathers who seek custody in court more often than not succeed. [Id. Legislation should not discriminate on gender grounds. The New Collins Thesaurus [1984] gives the following synonyms for “bias”: ” n. 1. Justice Johnstone is quite correctly telling us that outmoded societal biases with respect to women’s wages are inconsistent with equality before the law. The judge relied on the author’s reporting of the relevant social science research. His words are from the heart. Are Ontario’s Courts Gender Bias? Eng. Is Gene C. Colman the Right Lawyer for You? Increasingly, divorced fathers across the country have long expressed concern about a systemic bias in family court. 35, 1997, p. 133] Fifty-three percent of the non-custodial fathers claimed their ex-wives had refused to let them see their children. 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. the manifestation of gender discrimination differs in these two settings, there are small, but significant, gender differences in early childhood inputs in more developed countries as well. Since Brooks there has been even greater accommodation of the parental needs of working women. What sort of issues require coverage and explanation to the Canadian public? This self defeatist outlook feeds into the stereotypes and perpetuates injustice. One of the main ones is a good news story: most couples separate amicably, How many men have been looked at by judges and by lawyers as simply ‘another man’ bellyaching about “access”. 894 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. From custody and access issues to spousal support, we must ensure our system is unbiased and incorporates procedural fairness concerning gender roles. [From the recent case of B.B. 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. That father states: The lies that women get away with about Fathers must stop! In 2001, a joint study by the family court and the University of Sydney found that the family law system had “tilted more and more against women, either by accident or design”. 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. Findings show that when given this opportunity and encouragement, fathers are just as sensitive and responsive to infants as mothers are. 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. I would like to see more lawyers do more than simply tell their male clients – forget it. Fathers in divorce get primary or joint physical custody less than 7% of the time. While divorce represents a loss which deprives fathers of an attachment figure and a role or identity, it also constitutes a situation where fathers are judicially and legislatively disadvantaged on the basis of gender. Angle, cross, diagonal line, slant ~ v. 3. Can you imagine what part a dad’s abduction would play in the court’s determination? (3d) 436, 9 F.L.R.R. When you add separation and divorce into the mix, the same money has to provide for two households rather than one. I was consulted recently by a man who had come through a long term marriage. “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? A lawyer must properly interview a client and see if he has the requisite fact situation that would justify pursuing matters whether through patient negotiation or through court action. Accordingly, if there is a disparity between the male and female statistics in the employment category I have determined for the Plaintiff the male statistics shall be used, subject to the relevant contingencies. Who would, in their right mind, argue against such a fair minded approach? Had time permitted, I would have liked to have discussed in more detail the historical development of gender bias in law and society. I would like the media to more objectively report those issues that are important to children and to families. What passes as common sense one day or what passes as scientific research findings the next day, may all be shown, on more rigorous examination, to be nothing more than expressions of gender stereotyping, prejudice and bias. don’t because they haven’t the means to pay; still find a way to make partial payments. Equal Shared Parenting: Thought Of The Day, Spousal Support And Child Support Obligations, Religion, State, Gender Equality, and Damages for Court Order Breach. It makes sense, doesn’t it? 10, 25 February 1999]. [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. Did you know that the roots of blatant maternal preference date back in the U.S. to 1830 [Helms v. Franciscus (1830), 2 Bland Ch. The judge, as it is reported in this article, commented that there were no psychological assessments before him to suggest that husband had abused her during the marriage. I am a front line worker. Is it a “fact” or is it a “fantasy” dreamed up by frustrated male litigants and their lawyers? 110, unreported, digested at [1998] A.J. ): Moge (1992), 43 R.F.L. The appellate court sensibly rejected the plaintiff’s “rough environment” argument. 1, January 1992]. 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. It is the responsibility of litigants and their legal counsel to properly present the evidence and the authorities that challenge the myths. It is curious indeed that gender bias is being wrestled to the ground in those areas where women have historically been faced with the most invidious and objectionable discrimination. 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. 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. When I was preparing this talk, I sent out an email through Nick Kovats’ educational email service (which by the way is one of the best ways to keep up to date on recent developments on matters of concern to non-custodial parents across North America). Men and women have to go to family court to resolve family-related disputes, including disagreements over child custody and child support. In earlier times, it was assumed that men, by nature, are better suited to protect and provide for 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. Weathagirl March 19, 2017 at 9:53 pm. Is there gender bias in family court? Another resource is Sanford Braver and Diane O’Connell: Divorced Dads: Shattering the Myths, Penguin Putnam, 1998.]. Patriarchy affects how custody battles are eventually ruled – and not because the court is particularly in favor of women. After the greater part of the year, the child was returned under the Hague Convention and then dad had to slug it out at 393 University [the Court House in Toronto]. I call upon all those involved in our legal system to meet the challenge. 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. For years, many people have said that Family Court is biased towards women. Child Custody Gender Bias in the Family Court System. She states [at para 95]: Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. Rather, it reflects the prevailing attitudes and conditions of our society. Bent, bigotry, favouritism, inclination, intolerance, leaning, narrow-mindedness, one-sidedness, partiality, penchant, predilection, predisposition, prejudice, proclivity, proneness, propensity, tendency, turn, unfairness. However, it is questioned whether the court system is biased against men in matters involving custody and access to children when family breakdown occurs. I will demonstrate this evening, through just a few examples, how the law of Canada is rising to rid itself of gender bias in some areas, while in another area, in family law, men are discriminated against, vilified and simply put down for no other reason than the fact that they are men. I have had the worst look from a women judge as she entered the court room, like she already hated the fact that I even dare try for my children. ], Little difference was found between infant attachment to mom or dad. [Shirley M.H. 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. Is there a particu Parents who are in a custody dispute did not start off that way. I don’t need to read your affidavit. Each of the gender stereotypes trumpeted by the Alberta justice were demolished by Justice L’Heureux-Dubé. 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%). 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?”. The courts have endeavoured to alleviate this discrimination with the use of male or female wage tables modified by either negative or positive contingencies. 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