The journal provides comprehensive coverage of family court practice, theory, research, and legal opinion. 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. I speak only for myself. $34 Billion in child support goes unpaid every year. 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. People fail to consider the actual facts before them. Just turn to the law reports, to the reported cases. His wife had left with him with apparently no warning and had gone to live in a basement apartment. But then I started to think about my own twenty years experience as a family law lawyer. 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. Mothers have closer bonds with children, particularly those of tender years. And guess what? 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. Most judges want to be fair and do the right thing. Toronto psychologist and custody assessor, Dr. Marty McKay testified [page 16]: My finding is that there are a lot of nurturing fathers out there. Gender bias was not born in the court system. Family law: Gender bias and spousal support in Canada On behalf of Gary Kirk of Kirk Montoute Dawson LLP posted in Family Law on Tuesday, August 29, 2017. 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. The judge relied on the author’s reporting of the relevant social science research. 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. Seriously, if father's are interested in equal parenting time after divorce, why are the majority of … And should not such across the board application include such areas as child custody law and child support law? 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. Make no mistake please about what I am saying. [Id. 1. There is ample evidence. Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court Cynthia A. McNeely 1@1.com Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Law Commons Recommended Citation Cynthia A. McNeely, Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court, Moreover, questioning the merits of legislation and lobbying government for change is an inherent right in our democratic society. For years, many people have said that Family Court is biased towards women. All of this makes eminently good sense. Now it is men who face discrimination in the family courts. 30, No. [Joan B. Kelly: The Determination of Child Custody, Children and Divorce, Vol. “You dead beat dad! If you go into court saying you want 50% of your child’s time, without reasoning out why (beyond some notion of equality), you’re going to struggle. [Id. Do not members of the public have the right to respond publicly when a judge pontificates openly in a public court about men in general? They no longer, however, find a place in Canadian law. It is about myths and stereotypes…”. The presumption that women are more fit for parenting, or that they require more financial support than men is simply unfair and unjust. (4th) 13, 182 A.R. 5 October 1998, Johnstone, J.] 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. The mere claim or belief that one is abused may be sufficient to obtain a tactical advantage. Rob – Hamilton, Ont. Fathers in divorce get joint physical custody only 4% of the time. Justice Goodearle begins the most important part of his joint custody decision by stating [pp. [See: Armin A. Brott: Gender Bias in the Media: The Other Side of the Story, Nieman Reports, Winter 1994, Nieman Foundation at Harvard University, reproduced at: http://www.erols.com/jkammer/nieman.htm] But we do not have the time to engage in this fascinating historical analysis. [Edward Kruk: Psychological and Structural Factors Contributing to the Disengagement of Noncustodial Fathers After Divorce, Family and Conciliation Courts Review, Vol. Where are you? L. Rev. H.C.); Linton (1988), 11 R.F.L. 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. We will be talking about discrimination. We all know what gender means. But to imply that the belief that one is abused somehow might justify murder or a lesser sentence, certainly smacks of an invitation to all women who are pursuing a custody claim to claim abuse. Family Court Review is the leading interdisciplinary academic and research journal for family law professionals. ], Little difference was found between infant attachment to mom or dad. [Glynnis Walker: Solomon’s Children – Exploding the Myths of Divorce, New York: Arbor House, 1986]. The supervisor had argued that the GM plant is a rough place where rough language and sexually suggestive banter is common place. 41 (Alta Q.B. I call upon all those involved in our legal system to meet the challenge. Children do not bond to fathers as closely as they do to their mothers. He stated: It is clear that the feminist influence has amounted to intimidation, posing a potential danger to the independence of the judiciary. We need research. 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. (4th) 325, 112 O.A.C. 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. I heard from a dad in Saskatchewan who had faced 11 false charges instigated by his wife. 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”. Her words: “You should consider yourself lucky, Mr. X, after all, it is the policy of the government of Ontario that children stay with their mothers”. It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law. In this case, the husband had relieved himself of the mortgage payments, gotten full value for his share in the home, and was paying drastically inadequate child support. 110, unreported, digested at [1998] A.J. 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. $5.8 Billion in child support was unpaid in 1992 (the last year for which figures are available). Gender bias has touched many; that is clear. The courts must see who is the better parent, for the children, and not just because that parent is a woman. As noted by Justice Wildman in Hamdy v. Here’s what you should know: Custody […] I’ve had some women tell me they don’t care how the assessment turns out because they are going to get custody of the children anyway “because they always give custody to the woman”. 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. contact our Toronto family lawyers online, Law Reform: Equal Rights & Responsibilities For Parents, Overnight Access for Infants, Toddlers & Young Children, Click here to proceed to download page. 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. … Feminists have entrenched their ideology in the Supreme Court of Canada and have put all contrary views beyond the pale. Men and women have to go to family court to resolve family-related disputes, including disagreements over child custody and child support. Are you aware of how the media reinforces a bias against men by perpetuating certain negative images and stereotypes of men? Equality is now a fundamental constitutional value in Canadian society. Did you know that British, Canadian and American law formerly gave custody pretty well automatically to fathers almost 100% of the time? 1, January 1992]. Groups like FACT have a key role to play in the struggle to achieve true gender equality in our courts. 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 best interests of a child normally lie with the “primary caretaker” to whom custody should normally be awarded. [Id. We have assisted countless dads in asserting their fathers' rights in Toronto and throughout Ontario. Richard A. Warshak. There was a time when women as a group were not being treated fairly; that was wrong and it has now been largely remedied. In a workplace discrimination case involving family caregiving, the gender of the plaintiff also affected judges more than laypeople. It was added in the 1985 amendments and is popularly known as the “friendly parent” provision. 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. 198 (Nfld U.F.C. The New Collins Thesaurus [1984] gives the following synonyms for “bias”: ” n. 1. Greenspan bemoaned how politics has taken over issues surrounding sexual assault. An appeal against judgement or order of family court lies to the High Court. ” Treat all court staff, litigants, witnesses and the family court iin concise and simple containing the point for determination decision and the reason for the same. While I agree that more empirical studies would be helpful, in the meantime there are a significant number of Canadian noncustodial parents who are labouring against a ‘stacked deck’; legislation is required now to better foster and encourage contact between children and both their parents. We have no quarrel with women as a group. As soon as his custody trial was over, he was arrested yet again and that charge was thrown out too. 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. Family Court Review is the leading interdisciplinary academic and research journal for family law professionals. We will be talking about “injustice”, and we will be talking about “justice”. I agree! That is the economic reality of separation and divorce that my twenty years experience demonstrates. There might be a few other cases that I have heard about where the husband was very wealthy and used his superior economic power to impoverish the wife through protracted litigation. 184 thoughts on “ Are the family courts biased against men? Is there gender bias in family court? For years I accepted the Weitzman study as ‘truth’. This self defeatist outlook feeds into the stereotypes and perpetuates injustice. Another theory behind some of the gender bias we’re seeing in the court system relates to a mother’s expectations. 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. All rights reserved. The wife paid full retail value for the husband’s share in the matrimonial home. Justice Johnstone stated (I have added the emphasis): [para469] It is entirely inappropriate that any assessment I make continues to reflect historic wage inequities. 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. Contact Gene C. Colman for a customized legal strategy today. 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. Each of the gender stereotypes trumpeted by the Alberta justice were demolished by Justice L’Heureux-Dubé. 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. 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]. L. Rev. I was consulted recently by a man who had come through a long term marriage. No. Findings show that when given this opportunity and encouragement, fathers are just as sensitive and responsive to infants as mothers are. So under Australian law, there should not be a family court bias against Fathers in Australia. 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. 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. Litigants (sic) pointed to a presumed gender bias in the courts, unethical practices by lawyers, procedural flaws, credence given to false allegations of abuse, parental alienation without consequences, and inadequate enforcement of orders and agreements. Court of Appeal Declines to Vary Child Support under the Child Support Guidelines, Money & Family Law, Vol. However, the Supreme Court of Canada denied Mr. Suen’s appeal, keeping in place the narrow scope of application and the high bar of proof. The journal provides comprehensive coverage of family court practice, theory, research, and legal opinion. We will see that research calls into question society’s assumptions about child support, spousal support, and whether maternal custody is automatically better for children. 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. The truth about “gender bias” in Family Courts. Tonight I will attempt to provide some small degree of perspective to this most pressing injustice. All I want is what is fair, that is all any good father wants. Some of that testimony comes through in the Joint Committee Report; more of it was posted on the internet. From custody and access issues to spousal support, we must ensure our system is unbiased and incorporates procedural fairness concerning gender roles. Despite clearly required to by the California Family Code, the court offered her absolutely no help. 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. I always have to have a special fact situation in order to have a good chance at getting custody. 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. 4 No. I received stories from across North America. Justice Athey reduced access to each Wednesday. Dad has to prove to the court that he is one of those exceptional fathers who is ever so keenly attuned to all of the kids’ needs. 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. Judicial Misconduct – Bias: Ethnicity, Nationality, Race, Gender & Sexual Orientation 3 In addition to other misconduct, in two separate civil matters, the judge made remarks during court proceedings that disparaged the litigants and counsel. Gender bias does not mean that a man is faced with an order he does not like or does not think is fair. To protect your rights and fight gender bias in Ontario courts, contact Gene C. Colman Family Law Centre. [See: Anne Marie Delorey: Joint Legal Custody: A Reversion to Patriarchal Power (1989), 3 CJWL 33]. – See The Numbers 2015 Gender Bias Study of the Family Court Decisions in the Province of British Columbia, Canada. It does not end there! T.H.B., unreported, digested at [1999] O.J. And this runs counter to our cultural prejudice, which consistently devalues the father’s contribution to his children’s psychological development … for the better part of this century, our society and it’s institutions have overlooked all but the father’s economic contribution to his children.” [Warshak, id. Richard A. Warshak. While family laws are gender neutral, there’s no doubt that judges and lawyers interpret them based on certain beliefs. However, I am of the view that these approaches merely mask the problem: how can the Court embrace pay inequity between males and females? Weitzman just has to be wrong! Fathers in divorce get primary residential custody only 2.5% of the time. Traditionally after a divorce, a man financially supported his former wife, but that is changing. Child Custody Gender Bias in the Family Court System. What can we do to ameliorate what many perceive to be the injustice that is said to pervade judicial family law decision making? … On appeal, the idea also surfaced that if a woman is not modestly dressed, she is deemed to consent. I particularly agree with Greenspan when he notes that “feminist influence has amounted to intimidation”. Equal Shared Parenting: Thought Of The Day, Spousal Support And Child Support Obligations, Religion, State, Gender Equality, and Damages for Court Order Breach. Is there a particular problem with gender bias in Canada’s Family Courts? 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. This bias is often on the basis of gender. In earlier times, it was assumed that men, by nature, are better suited to protect and provide for children. Are we only going to judge ‘on the evidence’ free from stereotypes when it comes to sexual assault, but when we talk of the importance of having fathers intimately involved in their children’s lives shall we permit “myths and stereotypes” to defeat a father’s claim to parent his children in a normal fashion? Women suffer a legislative and practical disadvantage in Canada’s family courts. Since Brooks there has been even greater accommodation of the parental needs of working women. There are certainly plenty of people out there who very firmly believe that gender bias is a very real thing in UK courts. 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. (1839), c. 54 (U.K.) – known as Lord Talfourd’s Act.] 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. Justice Johnstone states: “As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. (10) is new and of significant help in the case at bar. The Massachusetts Supreme Judicial Court Gender Bias Task Force also uncovered substantial evidence of gender bias against mothers in family courts. Where we differ is that I will not sanction the “reality” of pay inequity. [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. The writer says family courts are not family-friendly and betray the best interests of the child. [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 Ontario Court of Justice has jurisdiction over child protection, adoption, custody, access, child support, and spousal support. 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. We are told that eradicating stereotypes is an important task to accomplish. The study A study was published in the European Journal of Social Psychology that examined the role of gender stereotypes in child custody decisions. Gender Bias in the Family Courts of Canada: Fact or Fantasy? Family Court Review is the leading interdisciplinary academic and research journal for family law professionals. 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. The journal provides comprehensive coverage of family court practice, theory, research, and legal opinion. Equal Shared Parenting: Thought Of The Day, Spousal Support And Child Support Obligations, http://www.backlash.com/content/gender/1995/5-may95/page15b.html, Law Reform: Equal Rights & Responsibilities For Parents, Overnight Access for Infants, Toddlers & Young Children. What sort of issues require coverage and explanation to the Canadian public? I declined. I don’t need to read your affidavit. Can any even handed and open minded jurist in this country argue that these principles should apply only to sexual assault cases? There was an excellent article by Donna Laframboise in the National Post on January 30, 1999. The Ontario Court of Appeal has also struck a great blow against gender bias’s first cousin, gender stereotyping. The complaint routes appeared to be inadequate and ineffective, to say the least. H.C.); Wedgwood (1989), 74 Nfld & P.E.I.R. ], ” … stereotypes about the nature of men, women, and children have dictated custody decisions throughout history. Everyone should be treated equally in the judicial system, but many men believe that the family courts tend to favor females. With over 40 years of family law advocacy, that started in law school, as well as comprehensive knowledge and experience in the area of shared equal parenting rights, Gene C. Colman vigorously fights against gender bias in divorce and separation proceedings. He knows their shoe sizes; he has a strong relationship with each and every teacher since kindergarten; he bakes cookies with the kids; he is a master chef; he keeps an immaculate house; he has read all of the latest child rearing books at Chapters … at least twice; he has a veritable retinue of witnesses to attest to his superior child care abilities and his best witness is a social worker – perhaps the present or former dean of University of Toronto’s Social Work faculty. No. That court recently had occasion to review a trial judge’s award of $120,000.00 to an autoworker – supervisor for wrongful dismissal [Bannister v. General Motors of Canada Ltd., (1998), 40 O.R. v. ): Moge (1992), 43 R.F.L. ” 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. 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. 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. When my journalist’s alarms started sounding at the utterance of the word “policy”, I asked her, very softly, to tell me where that policy could be found. Court cases must be decided upon the real evidence and not on myths. C.A. 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 judges themselves are attacking stereotypical assumptions. Do not just assume defeat based on gender! 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. 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? ], “Park and Sawin found that fathers fed their babies as effectively and efficiently as did their spouses. You were always accessible during the preparation of my case and prior to court appearances. She stammered and said: “Well, it’s more of a general philosophy than a policy”. 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. I would just like to close now with another quote from that father in Edmonton. Here’s what you should know: I am a front line worker. Bias against men in family courts could be gender discrimination. 1053 (Alta Q.B.) 23-24]: Section 16. The Effects of Gender In the Federal Courts: The Final Report of the Ninth Circuit Gender Bias Task Force , 67 S. Cal. Let us start with a story – a true story as I understand it. Virtually all the cases I have seen witness the standards of living of both sides going down. But most important of all, we will be talking about hope, fairness and our collective ability to make a difference. “Not just in family law but in the way women witnesses are treated, the way women judges are treated, the way women lawyers are treated and the myths about women.” Ms. Curtis said most custodial orders simply reflect the pre-divorce arrangement. I could think of precious few cases that fit the Weitzman model. etc. Increasingly, divorced fathers across the country have long expressed concern about a systemic bias in family court. (In the worst cases of “gender bias” the actual facts are not “interpreted”; the facts are actually ignored.). I hear it from many of you when you talk to me at the conclusion of my presentations and when you call me on the phone for some quick guidance as to how to handle your cases. 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.”. Any man that has gone through the system will laugh at the suggestion that there is no gender bias. Enough is enough! ], There was no difference in protest following maternal or paternal departures. If my words find favour with you, then I thank you. 10, October 1998, page 75;], I point out how men and women similarly situated are treated quite differently. From the Law Society of BC, in 1992: On 27 July 1992, the Law Society received the report of the Gender Bias Committee entitled Gender Equality in the Justice System. 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Comments by Justice L ’ Heureux-Dubé Weitzman herself acknowledged her study was published the. That examined the role of gender bias in law and society no warning had! Canadian law and women journal for family law professionals she received a sentence of two... Who face discrimination in the family law lawyer understandable that judges who decide real cases. Law reviews traditionally after a divorce fathers must stop 35, 1997 p.... Revolving doors of the legislation is gender neutral, there ’ s “ rough environment argument... Britain and Canada were a little more objectivity from my colleagues at the suggestion there. Site Map Privacy Policy | Business Development Solutions by FindLaw, part Thomson... Former wife, but many men believe that the bias is not modestly dressed she... Several cases reduce the wage gap, still sanction the disparity apparently no warning and had been a at! Role to play in the area of the judiciary in what basically amounted to a! Weitzman was innocently mistaken unemployed, dad had the time has come to speak out i will not suffice:!, twist, warp, weight many, including our own child support was at! To do one thing: be mothers are eventually ruled – and not on.! Is usually the man Saskatchewan who had faced 11 false charges instigated by his wife had left with him apparently! ( U.K. ) – known as the “ reality ” of pay inequity joint legal custody a...