Tag Archives: separation

Cohabitees – gifting them more property rights (Robert Whiston, March 31st 2009)

By Robert Whiston, March 31st 2009

(based on notes made at a meeting with MPs at Portcullis House)

The panel of MPs numbered six including Henry Belligham, Tim Loughton, Edward Timpson, Maria Millar, Eleanor Laing, and for a short time Dominic Grieve.

The meeting was addressed by several speakers including Derek Munn (?) from Stonewall, James Sandbach from Citizens Advice Bureau, Elisabeth Cooke from Reading Uni. who is also a Law Commissioner (together with 2 male colleagues), a Karen Mackay from Resolution (a family law solicitor grouping) and an Edwards Hess, a lawyer.

Discussion revolved around two main areas, 1/. pre and post nuptial contracts/agreements and 2/. giving female cohabitees more property rights as per a divorced spouse.

I missed most of what the representative (Derek Munn) from Stonewall had to say but in the short question time afterwards he replied to MPs that he saw nothing to object to in the Lord Lester proposals and didn’t see the Law Com proposals as compromising the position of gays.

http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090325/debtext/90325-0004.htm

See also Mary Creagh MP (Wakefield, Lab) proposals on cohabitation reform in a private members Bill (March 25th).

I therefore asked him if he had considered the situation where homosexuals had a free choice of 3 marital conditions, namely, 1. a civil union, 2, cohabiting with restrictions/liabilities and 3, cohabiting without restrictions, when what was planned by the Law Comm. for heterosexuals was the abolition of option 3 leaving them with only option 1 or option 2, i.e. both with potentially punitive property confiscation implications.

In reply he reiterated that Stonewall saw nothing in the Lord Lester proposals that were objectionable and didn’t read into the Law Com proposals any such restrictions.

Elizabeth Cooke Professor, Reading Uni., became Law Commissioner in July 2008. She has responsibility for property, family and Trust law. Among her many publications are: 'Land Law' (Oxford, Oxford University Press); 'Community of Property: a regime for England and Wales', research report co-authored with A Barlow and T Callus (Nuffield Foundation, 2006); 'Community of Property - A Study for England and Wales' by A. Barlow, T Callus and E Cooke (2003)

Elizabeth Cooke Professor, Reading Uni., became Law Commissioner in July 2008. She has responsibility for property, family and Trust law. Among her many publications are: ‘Land Law’; (Oxford, Oxford University Press); ‘Community of Property: a regime for England and Wales’, research report co-authored with A Barlow and T Callus (Nuffield Foundation, 2006); ‘Community of Property - A Study for England and Wales’, by A. Barlow, T Callus and E Cooke (2003)

Elisabeth Cooke from Reading Uni. and a Law Commissioner was the next speaker. She began with a long introduction about how the Law Commission was set up with a remit to have no political view or opinion (all very well but its Commissioners, oddly enough, all had very strong ideologies). The Law Commission, she said was assigned to look into, among other things, ‘pressing issues’ (which cannot be interpreted as including much of their work and certainly not reforming cohabitation).

She was very ‘wordy’ and seemed to take forever to say very little and even less of that was ‘concrete’. It was all very esoteric and hypothetical. What she did manage to be concrete about were rates and facts that she had obviously not checked – or thought her audience would not know.

For instance, she maintained that the number of women loosing out by not having rights after cohabiting for 20 years and having raised children was alarming high.

When asked to quantify this she could not. She could not even respond to whether such women, in terms of percentage of households, represented single of double digit figures. However, she was sure it was high and the trend was that it would become bigger.

In actual fact, around 11% of households are of a cohabiting nature and one has to estimate from other data that cohabiting relationship of 20 or more years duration must be in the order of 1%. [1]

Figure 1, below, is taken from ONS statistics. Cohabiting mothers are easily outnumbered by SLM, i.e. single lone mothers, (1,412k v 2,829k) and while many of the SLM may be cohabiting, arranging legislation to suit the ‘musical chairs’ transience of their partners promises to be an administrative nightmare.

Fig 1. Dependant children and marital status

Fig 1. Dependant children and marital status

http://www.statistics.gov.uk/downloads/theme_compendia/fog2004/gender.pdf

Given that most things for cohabitees can be attained or resolved within the existing law, i.e. FLA 1996 (e.g. non-molestation and occupancy orders), the need for radical reform would seem to shrivel. The ability to enact such orders has been extended to not only cohabiting couples but to non-cohabiting couples too (Section 4, ‘associated person’, section 33, quote, “have never cohabited or have never been married”). An applicant, i.e. a female, in a cohabiting or non-cohabiting female relationship can apply for an occupation order not only where she has lived with the respondent but where they had intended to live !

Many of those cohabiting relationship will evolve over time into marriage with other younger people cohabiting to take their place and so the ratio will remain fairly constant.

This leads onto another technicality; what is not realised by almost everyone is that cohabiting relationships are not a ‘stock item’ implying permanence and measurability but a ‘flow variable’. To compare them with marriage is to compare coal to diamonds – similar in their carbon parts only.

Elisabeth Cooke made the point that a recent case had revived the argument about whether pre-nuptial agreements were valid. She referred to a Privy Council case in vague terms and I have since found out it is MacLeod v MacLeod decided by the Privy Council involving a North American couple who had not a pre nuptial but a post nuptial agreement (‘Family Lore’, Dec 18th 2008 http://www.familylore.co.uk/2008/12/macleod-v-macleod-post-nups-valid.html

Both MacLeods were American, were married in1994. The husband was considerably wealthier than the wife. They had entered into a pre-nuptial agreement on their wedding day (valid in the US but not in Britain). It provided for each spouse to retain their separate properties brought into the marriage and property acquired post marriage to depend on legal title. If they divorce each party waived their right to claim any sort of maintenance. Properties owned jointly were to be divided equally between them.

The husband agreed to pay the wife a lump sum calculated as $25,000 for each full year that the couple had been married and regardless of time or location the agreement should be construed in accordance with the laws of Florida. The family moved to the Isle of Man; the marriage broke down, and the husband began divorce proceedings in 2003.

During the marriage, two further agreements were assigned that included a provision that, in the event of divorce or the husband’s death, the wife should receive £1,000,000 sterling, adjusted for inflation since February 2002.

The wife claimed full financial provision, asserting that the agreements should be disregarded, as “unfair pressure” had been put on her. The husband claimed that the third agreement should be upheld, which would have meant giving the wife £1.89m.

The Isle of Man court rejected the wife’s claim but agreed she should be given an additional £1.25m for accommodation, and said it should be paid directly to her rather than held in trust. The husband eventually appealed to the Privy Council (“the Board”), on the issue of whether the housing needs of the wife and children should be catered for by the lump sum, as ordered by the judge, or by a trust fund, as proposed by him, and the argument turned on the validity and effect of the 2002 agreement.

What this case highlights is the totally unrealistic demands of the family courts to hold a husband responsible for his ex-partners housing needs (costs) when she already has the ability to acquire it from the financial provisions he has already made – a demand insisted upon by family courts, day in day out, of men of far lesser financial means

Cooke also made the point that Scotland had already enacted cohabiting rights law and though it had run into a little difficulty – as was predicted by RW – it was a separate and distinct regime to that proposed for England and Wales (so it will be untried !).

To legitimise the concept of legalising cohabitation the Australian experience was cited more than once by speakers. They were of a view that it was working well.

(I do not understand why they emphasised the Australian experience when New Zealand has had such a law for much longer).

She was asked by one of the MPs (HB) if she thought the 1996 Act could be resurrected and made useful in this regard. Her reply was that she was unsure. (I then interrupted and asked for clarification that it was the Family Law Act 1996 and they confirmed it was. I then said that this particular Act carried within it a poison pill and HB thanked me for the warning).

I can see now – but I couldn’t then – why the FLA would be useful to pro-cohabitee activists. Although it is about marriage and how to dissolve it, it carries within it the creation of a new legal entirety known as an “Associated Person.”

Part 4 of the Family Law Act 1996 which is enacted and in operation (though Parts 1 and 2 are abandoned and inactive) empowers a court to intervene between not only married and formerly married couples but also cohabitees and former cohabitees.

It goes further and embraces those “living together” or having lived together in the same household (other than as employees, tenants, lodgers or boarders), or by simply being related, i.e. mother-in-law, uncles and aunts etc, having parental responsibility for a child, or ‘an agreement to marry’, which takes us back to the 1960s and the ludicrous situation of ‘breach of promise’ suits which the Law Comm. described at the time as a charter for “gold diggers”.

There are likely to be moves therefore to resurrect the concept of ‘associated person’ (see FLA 1996) in order to access and then confiscate property for the ‘vulnerable’ partner, i.e. the woman.

The same Act but in Schedule 10 places a duty on the court to consider making a non-molestation order. In order to make these effective Occupation Orders will be needed. Occupation orders regulate the occupation, so the owner of the house, invariably a man, will be legally excluded and the occupation rights of his own property might well be terminated or restricted (see also Ouster orders and 2004 amendments).

The question of why it was seen as perfectly reasonable for fathers and men to always fund such reforms was met with a chorus from her colleagues, who rejoined that “we” and the court must always put children first (the paramountcy mantra).

But must we put children’s alleged rights ahead of fathers ? Are those fatherly rights to be legitimately sacrificed on the CBI Altar (Child’s Best Interests) ?

Do millions of children want to know they are the cause for their father’s poverty? That his homelessness was the result of self-righteous solicitors carping on about female and children’s rights ?

How will they feel about that when they grow up ? Most of the nation’s homeless are men – and most of them are ex-servicemen. Is this the way a nation rewards its defenders ?

Several questions were then posed re: 1/. How could family courts cope when they were already creaking under the load of divorce cases and 2/. How could it be afforded given that 50% of cohabiting couples separate every 2 years on average and the great majority within 5 years the reply was that it would not affect courts and 3/. How could justice be assured when family court proceedings are held in secret ?

The benefits, in Cooke’s mind, were that arbitration would be transparent because if would be outside the court. It would be a cheap and quick option with no burden on court time – she envisaged a “do it outside the system” approach. How, and who would undertake this role was not outlined.

She then moved on to how the reforms would be enacted, the formulaic approach to male and female wealth and power versus vulnerability mantra, and the question of whether couples should be allowed to ‘Opt Out’ or ‘Opt In’. She, and the legal minds present, were at one in believing that all cohabiting couples should have to ‘Opt Out’ as this would protect the vulnerable cohabitee, i.e. the female, and should be the default position unless it could be shown otherwise.

To the objection to this last point and the proposal of adopting a purely ‘Opt In’ option came the reply that many women were put off marriage by its attendant costs (said to average £10,000 per wedding) and of genuinely not knowing they had no legal rights when their long term relationship ended.

To the proposition that perhaps money ought to be better spent on an education programme for women came the reply that this might be an adjunct but would not erase the problem.

IMO, having to ‘opt out’ would mean there was to be no vestige of property entitlement for the purchaser and no benefits accruing therefrom. This is a moot point with collateral implications that can only be speculated upon at this point in time.

Is there a conflict of human rights at stake here ?

Should the inalienable right to purchase, own and ‘enjoy’ property be comprised by an alleged ‘human right’ of another person to profit by controlling and enjoying that property upon separation ?

The Romans made the sharp distinction between formal marriage versus ‘free marriage’, cohabitation and concubinage. That distinction was in the acceptance into the family of the spouse (i.e. the wife) upon formal marriage only and no compensation was ever paid upon separation in the other forms of relationship which, from one epoch to another, were briefly fashionable and occasionally recognised by the state.

This brings us, if not to the crux, then certainly a significant branch in the road. If the Civil Partnership Act 2004 which will probably be used in conjunction with FLA 1996 as template, is examined the working in other jurisdictions implies a statutory nature of it being ‘registered’ and for ‘life’.

Fig 2. Meaning of overseas relationship: specified relationships, SCHEDULE 20

Source: Civil Partnership Act 2004, http://www.opsi.gov.uk/acts/acts2004/ukpga_20040033_en_1

Country or territory Description
Belgium cohabitation légale (statutory cohabitation)
Belgium marriage
Canada: Nova Scotia domestic partnership
Canada: Quebec civil union
Denmark registreret partnerskab (registered partnership)
Finland rekisteröity parisuhde (registered partnership)
France pacte civile de solidarité (civil solidarity pact)
Germany Lebenspartnerschaft (life partnership)
Iceland staðfesta samvist (confirmed cohabitation)
Netherlands geregistreerd partnerschap (registered partnership)
Netherlands marriage
Norway registrert partnerskap (registered partnership)
Sweden registrerat partnerskap (registered partnership)
United States of America:
– Vermont civil union

What is being proposed for England & Wales is a non-registration system for heterosexuals (as I interpret the Law Comm.’s paper) but not for homosexuals.

Cohabitating heterosexuals will be treated as if they have registered but cohabitating homosexuals will not be so considered unless they utilise the Civil Partnership Act 2004. The above table shows how same-sex unions are legalised by registration. Why cannot the same be done for cohabitation ?

There will, in many practical circumstances, be no option for heterosexual men to opt in or out; it will simply be ‘deemed’, i.e. presumed, that the male cohabitees has opted in by the fact that he has not actually opted out. This default position will be an abuse of governmental power far in excess of the alleged abuse (of women) it intends to rectify.

If the argument is that marriage and all its ceremonial and catering costs are too great for most couples then there already exists the less expensive vehicle of marriage at a Registry Office. The logical extension would be to extend the use of the Registrar’s Office to encompass cohabiting agreements for heterosexual couples who want to opt in.

A vigorous exchange then took place regarding ‘welfare dependency’. The point was made that many SLM (single lone mothers) were in fact cohabiting and that the benefits regime encouraged cohabiting women to declare themselves to be SLM; this would not reduce if reforms were introduced and the drain on the Treasury or tax payer would not relent. In fact, it could be predicted that the burden on the tax payer would increase as low income SLMs would be entitled to Legal Aid upon separation whereas their male partners would not.

In addition, the state would have to allocate extra resources, i.e. buildings, staff, training, to deal with the number of cohabiting cases it presently did not have to consider. No reform comes free of ‘collateral damage’ which is what is being promised now. Previous experience shows us that the Law Comm. reforms have always had both expected and unexpected costs. And beyond that we only have to look at the changes of Morris Finer in the Finer Report intended, in order to realise the opposite is often triggered. (The Finer Report of the 1970s has brought us only more illegitimacy, not less, and more single mothers, not less, and more SLM and children living in poverty, not less. In fact it was the starting point for what is popularly called today the dependency culture).

Far from moving us away from a dependency culture the speaker was challenged to explain how legalising cohabitation would avoid creating yet another layer of the dependency culture and or of reinforcing the present one.

The reply was that no figures were available as to the cost of dependency, or of the number of families’ dependant on benefits, or the true extent and cost of divorce.

It was then pointed out that at least one parliamentary report had quantified the cost of divorce and that the ONS regularly quantified the impact of fatherless children and husbandless mothers (see Social Trends and Population Trends).

Her reply was that the Law Comm. was not aware of this, which earned her the immediate retort to the effect that surely the Law Comm. was obliged to examine and source this data before presenting its proposals ?

There was then an interruption from one of the MPs and the exchange was cut short.

What is clear from ONS produced statistics is that the increases in re-marriages promised by the Law Comm. plans in its build up to the reforms of 1969 just haven’t happened (‘Table 2.1 Marriages and divorces, 1996-2006′). In 1996 the number of re-marriages was 53,642 and in 2006 it had fallen to only 43,398. This is also true where it was a 2nd marriage for one of the parties; the numbers having fallen from 64,653 to 50,061 in 1996 and 2006 respectively. (ONS: http://www.statistics.gov.uk/downloads/theme_population/FM2no34/FM2_No34.pdf)

Is this telling us that the penalties of re-marriage are too great and that the knowledge of those penalties are seeping down to the divorce and to the never-married – where first-time marriage, at 145,995, is at a century low point ?

Is the emotional investment in marriage no longer worth the candle ? Are the population, birth and marriage rates falling because there is no incentive for men ?

In academic circles it seems the agreed currency is to assert that:

“ … The increase in cohabitation has occurred alongside other, related, major demographic shifts, including: rising levels of divorce; delay in entry into marriage and childbearing; and, a rise in the proportion of births taking place outside marriage. These are all characteristic of the second demographic transition (Van de Kaa, 1987; Lesthaeghe & Surkyn 2004), although rising levels of cohabitation in the UK have only partially offset declining marriage rates (Berrington & Diamond, 2000).” – By Ernestina Coast (Lecturer in Population Studies, London School of Economics), ‘Currently cohabiting: relationship expectations and outcomes in the British Household Panel Survey (BHPS).’

But isn’t this missing the point about cohabiting ?

She links both ‘major demographic shifts’ (but these are not explained) and divorce to cohabitation. But is the increase in cohabitation merely due to random and naturally occurring ‘major demographic shifts’ or a realisation by the population of the cost and pain of divorce as presently constructed ?Money, like pain, alters choice and therefore human behaviour.

What explains the slump in Roman Catholic marriage, an otherwise bastion of tradition and influence with a stronger adherence among its flock than other churches who have seen a less steep decline ? Fig 3 below show the decline from 1981 to 2001.

Fig 3. Summary of marriages, http://www.statistics.gov.uk/STATBASE/Expodata/Spreadsheets/D7951.xls

Summary of marriages, 1981, 1991, 1996, 1998-2002 England and Wales
Numbers/Year 1981 1991 1996 1998 1999 2000 2001 20021
Total marriages 351,973 306,756 278,975 267,303 263,515 267,961 249,227 254,400
Manner of solemnisation
– Civil ceremonies 172,514 151,333 164,158 163,072 162,679 170,800 160,238 168,530
Religious ceremonies 179,459 155,423 114,817 104,231 100,836 97,161 88,989 85,870
of which:
– Church of England and Church in Wales 118,435 102,840 75,147 69,494 67,219 65,536 60,878 58,710
– Roman Catholic 26,097 19,551 13,989 12,615 12,399 11,312 10,518 9,980
– Nonconformist 2 29,017 25,472 18,617 15,161 14,136 13,435 11,163 10,570
– Other Christian bodies 4,422 5,597 4,988 4,585 4,554 4,316 4,047 4,170

[As an aside, it has to be said that not only did the content of the Family Law Act 1996 arouse deep controversy at the time but the very procedural devise employed angered many. The abuse of the Jellicoe Rules to get it through parliament was interpreted as an attempt to avoid Parliamentary scrutiny and suppress public debate. If passed (and it was for a short time only) it would have recognised and legitimised for the first time in English Matrimonial Law so-called common-law-wives. Spousal rights, once the preserve of bona fide married women, were to be extended to women cohabitees (men would not gain only suffer). As a consequentially, the potential scope for litigation was substantially enlarged (see Trust law actions, below)].

Throughout the delivery Elisabeth Cooke seemed to be addressing the two men directly in front of her who seemed to nod and titter at the appropriate places.

The next speaker James Sandbach, was from the Citizen’s Advice Bureau (CAB). He was not a legal expect but brought everyday experiences of women left with nothing to the seminar. Even he had to admit it was not a huge problem numerically and that most of the cases involved impoverished couples anyway – a point conceded by Elisabeth Cooke when she earlier described the near impossible for the courts of spreading meagre household incomes across two households.

Asked about the implications to Land Law and the philosophy of property that stood behind it, he made no reply possibly because he had no technical experience.

There was not the opportunity to acquaint any of the speakers with the facts in the pubic domain and the implications their proposals would have on ordinary peoples lives, that is to say:-

  • The ‘engine’ of wealth creation is the married man – not the cohabiting man (from US Pres’l advisor George Gilder, 1973. to Patricia Hewitt MP 1996 IPPR).
  • Cohabiting men and single men are lower income earners and are more likely to be unemployed, work part time and/or to live on benefits.
  • As far back as 1993 the divide between married and non-married men was noted by the ONS – an earnings divide replicated between married and non married mothers, i.e. SLMs.
  • Single mothers pose the greatest avoidable burden to the Treasury. They require more subsidies, yet never provide commensurate/off-setting tax revenue.
  • The escalating financial burden on the Exchequer, of these ‘alternative lifestyles’ i.e. SLMs, has seen Gov’t forced to create the £2 billion bureaucratic CSA, which collects a mere £15 million (Children First, Green paper).
  • Lord Irvine, when Lord Chancellor, complained about the cost of divorce, put at £5 Bn pa.
  • More recently the cost of divorce to the nation has been calculated to be in the realms of £30 billion (The Cost of Family Breakdown, Sept 2000, David Lindsay [assisted by R Whiston]).
  • Additionally, the cost of subsidies to single lone mothers (SLM) in Social Security terms was put (at 1994-95 prices) at £31 billion pa (R Whiston, ManKind paper).

These calculations share some overlapping aspects and while it would be wrong to simply add them together (to give £61b), a figure greater than £30b is a more realistically true cost.

The last of the speakers was a young lawyer called Edward Hess, who was introduced as being well practiced in cases involving cohabiting women. He spoke of the large numbers and wide scope of cases he had handled. They were all forced to be settled in Trust Law cases and involved ‘proprietary estoppel’ or “resulting trusts” or “constructive trusts” etc.

Edward Hess saw this as entirely unsatisfactory, “Large numbers of cases ended up in Trust Law … and absorb a lot of legal time” because they could not be properly dealt with in matrimonial law or in the family courts.

However, for the estate of a dead man to end up in a legal trust battle indicates that the estate was worth fighting over. It cannot be credibly envisaged that the estate of a cohabiting man of average income, or living on benefits, or living in a council flat would have an estate worthy of dispute by his cohabitee against his relatives each of them hiring their own set of solicitor and lawyers ?

One is reminded of Dickens’ great fictional (but based in fact) court case Jarndyce v Jarndyce:

The Jarndyce case concerned the fate of a large inheritance. It had dragged on for many generations prior to the action of the novel, so that, by the time it is resolved late in the narrative, legal costs have devoured nearly the entire estate. The case is thus a by-word for an interminable legal proceeding. Dickens used it to attack the Chancery Court system as being near totally worthless, as any “honourable man among its [Chancery’s] practitioners” says, “Suffer any wrong that can be done you rather than come – ‘Bleak House’ by Charles Dickens.

Hess prefixed is comments by seemingly to disparage the genuinely held views of Melanie Phillips and Simon Heffer (?), “We don’t want any of that sort of thinking here today was the gist and acknowledged that the room contained one traditionalist voice that had opposed everything that had so far been proposed.

In common with Cooke, Hess made mention of the recent Scottish development (presumably the legalising of cohabitation) and of the MacLeod decision. However, it must be remembered that the Macleod’s had enough money to take it through all the Isle of Mann courts and then on to the Privy Council.

It is all very well and laudable for lawyers to reform the law but should it bring unpleasant or dire consequences it is the voter that has to live with the consequences. He is not I suspect from a political science background and this is pivotal aspect that is constantly overlooked when social reforms are afoot.

There was no time to pose questions and after the meeting broke up in conversation with the last speaker, Hess, he made light of Baroness Deech’s opposition to Lords Lester’s Bill. He didn’t see the validity of her points and so did not agree with them (though she made precisely the ones we made to the Law Commission in 1995 !).

The meeting broke up soon after 1 pm.

End Piece.

Common Law Marriage’, By Goran Lind (2008).

Few areas of Roman law have evinced as wide a range of opinions as classical matrimonial law. On the one end, it is considered “perhaps the most imposing Achievement on the Roman genius”. On the other, classical marriage has been thought to provide “the true explanation of how the formerly so powerful Roman Empire could easily overthrown once the foundation of society – the family – had been broken. Regardless of the accuracy of these views, it may be confidently said that Roman Matrimonial law was fundamentally different from it modern European equivalents, which in recent times have been subjected to alien influences, primarily canon law. [p 31]

…. Formless relationships [free marriages and cohabitation] were recognised as marriages and cohabitation was recognised.

Roman marriage..…. [was] seen as a total community of life … a life long companionship for the whole of life ….. not simply a liaison for the purpose of meeting a limited need, such as sexual urges or procreation of legitimate children. [pp 31 – 33]

It would appear that the concept of maintenance and post separation payments or property adjustments had completely by-passed Roman legal mind.


[1] ONS, “Living Arrangements: 9 in 10 lone parents are women”, UK Office for National Statistics; Focus on gender; 8 January 2004, “one in ten [couples] are cohabiting”

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Gender Bias and Family Law : Where are we ? (2000)

By Gene C. Colman

This paper was presented by Gene C. Colman to the Federation of Law Societies National Family Law Program 2000 held in St. John’s Newfoundland, July 2000.

PART 1: INTRODUCTION

Gender bias does exist in Canada’s family courts. Is this state of affairs healthy for litigants, lawyers, judges and the justice system generally? I submit “not”. As lawyers, do we approach our cases in a truly objective manner free from prejudice and stereotype? Do judges actually decide cases based upon the law and upon the admissible evidence, free from prejudice and stereotypical assumptions? Or, are we all manifestly influenced by our upbringing, by our education and simply by our ‘gut’ feelings? How carefully and how objectively do we really assess the tragedy of each individual marital separation and divorce matter that comes our way?

This writer suggests that it is high time that we lawyers and judges undertake some very serious soul searching. We have failed our constituency – the parents and children who turn to us for “justice”. This writer will admit that “justice” for the “winner” is not necessarily “justice” for the “loser”. We surely cannot please all the people all of the time. However, the manner in which we approach our cases, the manner in which we filter the facts of the case, the manner in which we apply the statute law and the case law, the manner in which we deal with the participants on a simply human level – these are all tasks that we must approach in a truly objective, balanced, even-handed and most of all, courteous, manner. If we do fulfill this mandate, our consumers (the families in the throes of separation and divorce) will come to perceive that family law lawyers and family law judges indeed do give every individual, do give every family, fair and impartial consideration. If we do fulfill our mandate, then there need not be “winners” and “losers”. Unfortunately, we have failed miserably to fulfill our mandate. We have alienated. We have been harsh and rude in our dealings with counsel and their clients. We have made unwarranted and unjustified assumptions based upon irrelevant personal characteristics of the other party and we have not hesitated to repeat those untruths in letters, affidavits, and elsewhere. As judges, we have been quick to condemn one side or the other without truly empathizing with the pain and concerns of the litigants and without making any real attempt to appreciate the often desperate situation of the party upon whom we foist most of the financial responsibilities. In short, we lawyers and judges have exacerbated the conflict and we must shoulder a good portion of the blame.

How have we allowed ourselves to become so ‘divorced’ from the concerns, the fears, and the angst of those whom we are supposed to faithfully serve? There is a preponderance of evidence which strongly suggests that rather than approach cases from an objective launching pad, we allow ourselves to be significantly influenced, nay swayed, by what is politically correct, by what appears to be popular at any moment in time. In short, we sadly do not do what we should be doing. We tend to ignore or minimize the actual ‘facts on the ground’. We make assessments and decisions based upon prejudice and stereotypes. In doing this, we lawyers and judges are prone to bring the administration of justice into disrepute. We lawyers and judges are promoting a high degree of alienation amongst substantial sectors of our population. Surely we have not done so intentionally! Most family law lawyers and family law judges do want to do what is right and just. Most of us truly want to help families resolve their difficulties as quickly as possible. Nonetheless, we have allowed ourselves to be led astray. We have to reform the manner in which we resolve family law cases. We have to critically examine our prejudices, our biases, our political correctness. We have to recognize that “gender bias” exists and then we have to move forward from that point to sensitively address the needs of all of our consumers be they men, women or children.

PART 2: DEFINITION The New Collins Concise English Dictionary, 1982 defines “bias” as follows:

1. mental tendency or inclination, exp. Irrational preference or prejudice.”

Another definition, from that same dictionary, cites a meaning within statistics. The dictionary reads:

5. Statistics. A latent influence that disturbs an analysis.”

The New Collins Thesaurus [1984] gives the following synonyms for “bias”:

n. 1. Bent, bigotry, favourtism, inclination, intolerance, leaning, narrow-mindedness, one-sidedness, partiality, penchant, predilection, predisposition, prejudice, proclivity, proneness, propensity, tendency, turn, unfairness. 2. Angle, cross, diagonal line, slant ~ v. 3. Distort, influence, predispose, prejudice, slant, sway, twist, warp, weight.

Emotional Overtones: It is clear, I would suggest, that the emotional overtones of the word, “bias”, evoke a visceral, gut reaction to the effect that “bias” is hardly a praiseworthy quality. When we accuse a legal system, a judge or a lawyer of being “gender biased”, then this can be interpreted as an attack, an insult. This writer does not intend it to be taken that way. We are all prone to interpreting events, to interpreting evidence, through the prisms of our own education and experience (legal and otherwise) and to view the world and ascribe motives and behaviours in a way that accords with our preconceptions. While this is only human, it is not necessarily a fair and equitable manner of presenting and deciding family law cases. We must strive to do better!

Gender Initiatives Review: The Women Lawyers Association of New South Wales presented a Discussion Paper for the New South Wales Courts’ Gender Initiatives Review. This paper correctly states:

Each person’s background, experiences and views influence how they see the world and approach issues and other people. This same paper, quoting from Prof. Kathleen E. Mahoney, notes that gender bias in the legal system can be an unconscious as opposed to a deliberate attempt to undermine the fairness of the system:

Gender bias is acknowledged to be a systemic form of discrimination – that is, a pattern of conduct – arising from social and cultural assumptions about the roles and expected behaviour of men and women. Gender bias can arise both as a predisposition or a pre-judgement. Most gender bias in the legal system is unconscious, based upon attitudes and stereotypes rather than deliberate decisions. Proving this attitudinal bias is difficult and hard to prevent and correct. Biased attitudes affecting individual cases can then affect the development of law and the treatment of women in society at large.

This author would support Prof. Mahoney’s analysis but only up to the last sentence, if Prof. Mahoney means to imply that gender bias can, by definition, operate only against the interests of women. Gender bias can, and does, operate against both genders.

Prof. Mahoney continues her analysis but again, this writer parts company with her if she means to imply that only women can be the subject of gender bias. Her analysis as to the dynamic of gender bias is one that this writer supports, provided we recognize that both women and men can face gender discrimination and bias.

Gender bias takes many forms. One form is behaviour or decision-making by participants in the justice system which is based on, or reveals reliance on, stereotypical attitudes about the nature and roles of men and women or of their relative worth, rather than being based upon an independent valuation of individual ability, life experience and aspirations. Gender bias can also arise out of myths and misconceptions about the social and economic realities encountered by both sexes. It exists when issues are viewed only from the male perspective, when problems of women are trivialised or over-simplified, when women are not taken seriously or given the same credibility as men. Gender bias is reflected not only in actions of individuals, but also in cultural traditions and in institutional practices.

Author’s Definition: I therefore define gender bias in the context of our legal system as follows:

“Gender Bias” is the tendency to interpret the actual facts of the case through a prism of favourtism to one gender over the other where such favourtism is based upon prejudice, stereotyping, distortion and irrational preference.

Our Challenge: The challenge for truly dedicated jurists and lawyers is to overcome the past and to look forward in a way that leaves open all possibilities – to judge fairly and impartially based upon the actual facts of the individual case.

This writer adopts the words of Vancouver lawyer, Carey Linde :

A committee of parliamentarians concerned about fairness in custody and access issues has to realize that the gender neutral divorce laws are not the problem. The problem is with the “judicially assumed presumptions” that govern the day to day determinations of the best interest of the child test in our lower courts. These “presumptions” typically have never been put to the test of evidence, but spring from and are maintained out of gender biases still ingrained in the system.

PART 3: HISTORICAL BACKGROUND

Patriarchal Society: Family Law used to be within the bailiwick of men. Women were not permitted to vote. Women were not even “persons” at law until well into the 20th century. Women were clearly disadvantaged in contemporary terms. Historically, we lived in a patriarchal society, ruled by men. Men made the laws; men applied the laws.

In family law, the father as of right was the one who was granted custody and guardianship of his children. It was not until 1839 in England that the statutory authority was granted to the courts that even enabled mothers to obtain custody – and then only if the children were under seven years of age and if the mother had not committed adultery. Most Canadian provinces enacted legislation similar to the 1839 British statute. Only in the most exceptional of circumstances were mothers granted custody under such a regime. It was only in 1886 that mothers officially obtained rights equal to those of fathers in regard to court ordered custody. From approximately the 1920’s until the present time, the courts have tended to leave children, especially of so-called “tender years”, in the care of the mother. The foregoing brief history is but a reflection of the social times. Women were largely at the mercy of men. There was a social perception that men knew what was best. It would only logically follow that there was a strong presumption, as reflected in statute and case law of the time, that child custody cases were decided in favour of men. This state of affairs had absolutely nothing to do with what may have been best for any individual child. It had everything to do with what was “politically correct” at the time. Our society and hence our legal system was riddled with gender bias against women.

Feminist legal analysis: It is understandable (and desirable) that the liberation movements of the 60’s led to the feminist legal analysis of the 70’s and to the present time. This is a normal and healthy reaction to the historical dominance of men in western society. Unfortunately, this analysis, like all sociological critique and discourse, tends to generalize. Furthermore, this discourse tends to have a socio-political agenda. Whether we are considering ‘female’ agendas or ‘male’ agendas, special interest agendas that seek to disadvantage one group have no place in our family law system. Our family law legal system should be the epitome of even handedness and fairness. Certainly no woman should face any form of gender bias within the system; neither should any man have to overcome stereotypical assumptions of judges and lawyers.

Don’t ignore true facts: When we decide cases about the future responsibilities and rights of the disintegrating family, we cannot and should not ignore the true facts of the individual situations. Bias, stereotypical assumptions, and shoot from the hip assessments of what role this particular dad or this particular mom played during the marriage and after separation – all have no place within an enlightened, impartial and truly fair/unbiased system of family law justice.

PART 4: STEREOTYPICAL ATTITUDES

Stereotypical attitudes permeate society and quite naturally and as an extension of that, they permeate the attitudes of lawyers and by judges. Men’s groups tend to argue that the system is stacked against them because they are perceived in a certain fashion, regardless of the facts of their individual cases.

Just as many men argue that gender bias permeates the system as against them, so too do many commentators lament the insensitivity to the predicament of women in the family law system. These commentators emphasize there is a very real issue of physical and other forms of abuse by men against women and children. Illustrative of this position are two articles in volume 14 – 1 (1997) of the Canadian Journal of Family Law:

Firstly, Dr. P. Susan Penfold, Clinical Director of the Child Psychiatry Inpatient Unit at the British Columbia Children’s Hospital, argues that there are six commonly held assumptions with respect to child sexual abuse allegations that arise during custody disputes. Referring to a number of other studies, Dr. Penfold cautions that these assumptions have little validity. Dr. Penfold observes that part of the problem here is that our system is riddled with gender bias against women. Quoting from the B.C. Law Society Gender Bias Committee, she writes:

Over the past few years, various federal and provincial committees and task forces have studied gender equality in the justice system. The Report of the Law Society of B. C. Gender Bias Committee concludes, “gender inequality is pervasive in the legal and justice systems of this province. While we are satisfied that there are examples of gender bias against men, the vast majority of concerns raised reflect discrimination against women.” Family law is noted to present “the most difficult and complex issues of gender bias…All of us hold preconceived and possibly stereotypical notions about family law matters because of our personal life experiences.” Women often have multiple additional obstacles to confront, including poverty, naivete about institutional structures and practices, and the disadvantages of having to rely on legal aid lawyers.

Dr. Penfold appears to conclude that this gender bias and stereotyping are factors in society tending to doubt the veracity of women’s allegations of child sexual abuse against men. Unfortunately, Dr. Penfold herself stereotypes women (see the above quotation) as poor, uninformed, and less competently represented because women have to rely upon legal aid lawyers.

The second article in that same issue of the Canadian Journal of Family Law decries the insensitivity of judges to the issue of male violence when it comes to making decisions with respect to custody and access. Melanie Rosnes’ methodology was to review the content of the reported child custody and access cases in the Reports of Family Law from April 1992 to April 1994. Of those, she found sixteen cases of alleged violence; the mother usually received custody but the father usually obtained unsupervised access. Ms. Rosnes assumes that the historical subjugation of women by men serves to influence judges to be insensitive, to say the least, when it comes to dealing with male violence. Rosnes appears to assume that all men are violent. The opening sentence of her article makes this clear: “The subject of how male violence affects women and children in the context of child custody and access is a relatively neglected topic in Canadian academic literature.” Rosnes cites other studies herself to present proof of various stereotypes, which this writer suggests places men in general in a very poor light:

Ideologies perpetuating the subordination of women are reproduced through the gender neutral discourse of family law, in particular the best interests of the child principle. (at p. 35)

The ideology of equality in family law, or the principle that both parents are equal, creates the illusion of fairness and equity, while ignoring the differences between men’s and women’s everyday lives, and the fact that in most cases it is women who do the day to day work of caring for children. (at p. 35)

In addition to the ideology of equality, the ideology of fatherhood, that is that children need fathers in order to have a stable and fulfilling childhood, now pervades society. (at p. 35)

Familial ideology then, which includes the idea that the heterosexual nuclear family is a warm, safe, and natural institution, permeates both society and family law. (at p. 37)

Ideas about the family mask its inequality, its violence, and exclude families and individuals who do not conform to the ideal. (at p. 37)

Patriarchal beliefs, or the idea that men are superior and have the right to dominate and control women and children, also pervade law and society. (at p. 38)

At one point in history a husband was allowed to beat his wife as long as the object used was no thicker than his thumb, hence the rule of thumb. (at p. 38) [See below with respect to the myth inherent in this statement.]

Rather than acknowledging the historical roots of male violence, and the structural conditions that perpetuate it, medical, legal and helping profession discourses pathologize family violence, and end up blaming woman for her own abuse.

Rosnes examines in some detail a selection of the sixteen cases and criticizes them thoroughly. Her conclusions emphasize her distinctly ideological position with respect to generalized behaviours and roles of women and men and the effect that societal perception of those roles may have on judicial decision making:

Familial ideologies, which emphasize romantic love and marriage, traditional gender socialization, and the heterosexual nuclear family as the foundation of society, infiltrate all institutional structures. As well, patriarchal attitudes, the concept of women as property, and the hierarchical nature of the family, all contribute to the normalization of male violence in the home.

Ideologies of the family, then, are legitimized by established legislation, and male violence, which has very real consequences for women, children and society, is ignored, minimized, normalized and perpetuated in family law.

These two articles, like many others that permeate the academic literature, start from the premise that most (if not all) men are violent, that we still live in a patriarchal society, and that judges are influenced by these unwritten norms. The inevitable result is that women cannot and do not receive fair treatment in the family courts of Canada. The argument is made that it is women who are victimized in heterosexual marriage and it is women who suffer yet further victimization in the family courts. All of this, we are told, is on account of gender bias.

These authors are complaining of gender bias that permeates the system. They do not want cases decided based upon false stereotypes of idealized dads, misconceptions of the historical role of women in the family and idealized perceptions of what a “family” should be. Rather, they would prefer that cases be decided on the basis of another set us stereotypes: that men are violent by nature, that most if not all men exercise some sort of violent control over women, that men have not played and therefore do not play significant roles in the rearing of children, and that children would not really miss their fathers in any event.

There are other commentators who take a more sympathetic attitude to the plight of men who seek to maintain and even expand relationships with their children upon separation and divorce. They approach the legal system with a degree of trepidation that equals if not surpasses the feminist suspicion of our family courts. They criticize the assumptions, presumptions, and biases that they say men face in the family courts.

Myth:

One of the most pervasive myths of family law, here and in the U.S.A., has been perpetrated by sociologist, Lenore Weitzman. She has reported that women suffered a 73% drop in their standard of living following divorce while men experienced a 42% increase in theirs. [Lenore Weitzman: The Divorce Revolution, 1985] This study has been cited favourably in a number of Canadian cases in numerous American cases as well as in President Clinton’s 1996 budget. “Weitzman’s figures have been cited by policy-makers and others as hard evidence of what’s become known as the ‘feminization of poverty’”.

Contra:

For years, like many others, this writer accepted the Weitzman study as ‘truth’. But then I started to think about my own twenty-one years’ experience as a family law lawyer. I tried to recall those situations where the man improved his economic position post separation and divorce while the woman’s economic situation declined. I could think of precious few cases that fit the Weitzman model. In fact, I could think of none. Virtually all the cases I have seen witness the standards of living of both sides going down. For most of us, it is a struggle to maintain mortgage payments, debt payments and other responsibilities. When you add separation and divorce into the mix, the same money has to provide for two households rather than one. Both sides are often faced with significant legal bills, other additional debt, and increased stress that naturally affects work performance. Common sense tells us that everyone’s standard of living suffers. My own personal experiences certainly do not constitute scientific analysis. However, there has been ample criticism of Weitzman in the literature:

The problem was that Weitzman’s numbers were woefully inaccurate, a conclusion shared by independent researchers, feminist researchers, and, eventually even Weitzman herself.

Two social scientists whose methodology Weitzman had used, attempted to duplicate Weitzman’s results using their own data. Those social scientists found that “post-divorce women suffered a much smaller and temporary decline in their standard of living of 30%. The two also found that divorced women’s standards of living actually rose within five years to figure higher than that obtained while married to their former husbands.” The two had tried to obtain Weitzman’s raw data but she had held back on that for four years. When she did finally release her data, the figures were “disorganized and unreviewable”. The U.S. Census Bureau acknowledged that the Weitzman percentages were in error and eventually, Weitzman herself acknowledged that “her study was erroneous”.

Susan Faludi highlights many reasons to suspect Weitzman’s data and conclusions:

1. For at least six years, Weitzman avoided releasing her data.

2. The authors of the methodology used by Weitzman could not gain her cooperation for release of her data and they found that Weitzman’s own published data was not consistent with her conclusions.

3. The U.S. Census Bureau in 1991 supported the conclusions of the above two researchers, which therefore cast doubt upon Weitzman’s conclusions.

4. Weitzman’s sample size was a mere 114 divorced women and men and her response rate was very low.

5. The sample was restricted to Los Angeles County.

6. Weitzman’s sole data source was the memory of the women interviewed.

7. Weitzman had no comparable data on those divorced prior to the no-fault divorce laws of 1970.

8. A 1990 study by two law professors found that women and children were slightly better off under the no-fault law.

Sanford Braver’s book, Divorced Dads: Shattering the Myths, demonstrates that much of the research on the topic subsequent to Weitzman’s fails to consider the U.S. Tax Code which, like our own, favours the single custodial parent. Like our own Child Support Guidelines, this research also fails to consider the non-custodial father’s spending on the children. After making these adjustments, Braver tells us that the economic effects of divorce are similar for both genders; mothers might even have a slight advantage.

Canadian Study with Empirical Data: The Federal Government commissioned studies prior to the drafting and ultimate implementation of the Federal Child Support Guidelines. One such study is dated 1995 and is entitled: “An Overview of the Research Program to develop a Canadian Child Support Formula”. The researchers used empirical data gathered from fifteen court districts across Canada over a three-month period during 1991. They readily admitted the possible frailties of their data, but ultimately concluded that the “empirical analysis based on this database to be original, useful and worthwhile”. They divided the families into three subsections: low income – less than $15,000 annually; medium income – $15,001 to $30,000; high income – greater than $30,000.00. There was a rather startling result when one considers the conventional wisdom à la Weitzman et al: “In most cases, the standard of living of both parties declined as a result of the separation.” We are dealing here with a sample of 869 cases. Other findings of note:

· “In general, when both parents were in a low income category ($15,000 or less) and there was only one child, the custodial parent had a higher standard of living after taxes. … If there were two children, the parents had similar standards of living, and if there were three or more children, the non-custodial parent had the higher standard of living after taxes and payment of awards.”

· “[W]hen the non-custodial parent has a low income, the average decrease in his or her income-to-needs ratio is further than the custodial parent.”

· The authors analyze further the situation where both parents are in the low income category. They find that prior to separation, the family can manage – average household income is found to be 17% higher than needs as defined by the “low income measure” that we are now familiar with from the household standards of living test. After separation, however, “the loss of economies of scale at marriage breakdown reduces standards of living for both households; on average, the custodial household has an income-to-needs ratio of 0.88, and the non-custodial household is even worse off at 0.83.”

· The study did reveal that where the non-custodial parent was in the high-income category, they did “enjoy very high standards of living relative to their ex-spouses and children”.

Recall that the data was gathered in 1991. We are now nine years later and under the regime of the Guidelines across Canada. Child support awards are now higher relative to the non-custodial parent’s income, there is no tax treatment to child support, and spousal support awards tend to be higher and for longer periods of time. To what extent, and especially in the case of low-income non-custodial parents, do we actually experience the “feminization of poverty” as decried by Lenore Weitzman?

But popular myths do not die easily. One Canadian court acknowledged that the Weitzman work was flawed, but it still accepted her analysis:

I am aware the Weitzman study has been criticized, and that further research has been done which supports the conclusion that the impact of divorce upon women is not statistically greater five years after divorce than the impact on women of the general conditions of the work force. (Faludi, Susan: “Backlash: The Undeclared War Against American Women”, Anchor Books, Doubleday, 1991.) However, the Supreme Court of Canada in Moge (supra) did not rely solely on the Weitzman study to conclude that divorce support awards were impoverishing women and allowing men to become richer.

Myth:

The best interests of a child normally lie with the “primary caretaker” to whom custody should normally be awarded.

Contra:

No empirical evidence supports the distinction between primary and secondary caretaker after age five, as children’s greatly increased social, cognitive, and emotional maturity creates changes in the meaning of attachments and parent-child relationships to the child. (According to Carey Linde, data in the above paper suggests that there is no distinction between primary and secondary caretaker even before the age of five.) Myth:

Women suffer a legislative and practical disadvantage in Canada’s family courts.

Contra:

While divorce represents a loss that deprives fathers of an attachment figure and a role or identity, it also constitutes a situation where fathers are judicially and legislatively disadvantaged on the basis of gender.

Myth:

Men are not usually as capable of being custodial parents as are mothers.

Contra:

Fathers who have sole custody echo the complaints of mothers with sole custody. They feel overburdened, just as the mothers do, but the evidence indicates contrary to the stereotype that divorced men can rear and nurture their children competently and are equally capable of managing the responsibilities of custody, with the possible exception that the fathers have been found more effective when it comes to matters like discipline, enforcing limits, and that’s particularly with boys. Park and Sawin found that fathers fed their babies as effectively and efficiently as did their spouses. They solved their feeding problems, burped and stroked, awakened and soothed appropriately and, most important, got as much milk into their babies in the allotted time as did their spouses. This rather surprising finding held true whether or not the fathers had extensive experience with babies before their own were born. Clear support cannot be found for the belief that fathers do not have the same sensitivity as mothers do, nor the belief that fathers do not have the capacity to assume the day-to-day responsibility for child care. On the contrary, studies show that fathers can be just as sensitive and competent in care-giving as mothers. In one group of studies, researchers have compared the psychological and physiological responses of mothers and fathers to infant smiles and cries (Frodi & Lamb, 1978; see also Berman, 1980). Findings show that when given this opportunity and encouragement, fathers are just as sensitive and responsive to infants as mothers are. In another group of studies (See Parke, 1979) mothers and fathers were observed interacting with their newborn babies in the first few days after birth. During this observational session, fathers were found to be just as involved with and nurturant towards their infants (e.g., in touching, looking at, kissing, talking to). Also, fathers were found to be just as competent at feeding. They were equally likely to be able to detect infant cues, e.g., sucking, burping, and coughing, and were just as successful, as measured by the amount of milk consumed by the infant.

The major finding of the study was that across a variety of assessments of psychological well-being (self-esteem, anxiety, depression, problem behaviors), children (especially boys) did significantly better in the custody of their fathers. Moreover, children in father custody had the advantage of maintaining a more positive relationship with the nonresidential parent – the mother.

Myth:

Mothers have closer bonds with children, particularly those of tender years. Children do not bond to fathers as closely as they do to their mothers.

The rule that children of tender years belong with their mother has been considered by the courts as a rule of human sense or common sense rather than a rule of law. It is only one factor to be considered with all the circumstances.

Contra:

Numerous studies have established beyond a doubt that infants form close attachment bonds with their fathers and that this occurs at the same time that they form attachments to their mothers. Although father and mother usually play different roles in their child’s life, “different” does not mean more or less important.

. . . a warm, involved, caring father does militate against antisocial behavior, and an inadequate father does increase the probability of delinquency. As in the case of intellectual development and social development, a father can be a predominantly positive or negative influence with regard to his children’s moral development. And this runs counter to our cultural prejudice, which consistently devalues the father’s contribution to his children’s psychological development. . . . for the better part of this century, our society and it’s institutions have overlooked all but the father’s economic contribution to his children.

. . . stereotypes about the nature of men, women, and children have dictated custody decisions throughout history. In earlier times, it was assumed that men, by nature, are better suited to protect and provide for children. Since 1920, it has been assumed that women, by nature, are better suited to love and care for children. . . . As guidelines for custody dispositions, folklore, sentiment, and stereotypes are poor substitutes for factual information.

Myth:

Upon family breakup, young children will miss their mother more than their father and therefore, young children should stay with their mother.

Contra:

Many studies show that children show no particular preference for or problem with either parent staying or leaving.

Children in stress or not in stress showed no apparent preference for either parent.

There was no difference in protest following maternal or paternal departures.

Little difference was found between infant attachment to mom or dad.

Myth:

We all agree unequivocally that access denials form a miniscule part of our practices.

Contra:

40% of the custodial wives reported that they had refused to let their ex-husband see the children at least once, and admitted that their reasons had nothing to do with the children’s wishes or the children’s safety but were somehow punitive in nature.

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.

In response to the myth expounded above, the writer responded as follows:

On the contrary, I maintain that the problem of access denial is much more widespread than it should be or my colleagues in the Family Law Section apparently believe it to be. Liberal M.P. Roger Gallaway, the chair of the Joint Committee, was quoted in the May 10 Sunday Sun as having received a submission from the Ottawa-Carleton C.A.S. to the effect that of the 900 complaints received which involved custody – access cases, 600 were shown to be unfounded or unsubstantiated. A 1991 article in the American Journal of Orthopsychiatry reported that in a survey of 220 divorcing couples, non-custodial parents reported significantly more visits with their children, as well as significantly more denial of visitation by their ex-spouses, than did custodial parents.

While I agree that more empirical studies would be helpful, in the meantime there are a significant number of Canadian non-custodial parents who are labouring against a ‘stacked deck’; legislation is required now to better foster and encourage contact between children and both their parents. Unreasonable denial of access, false claims of abuse, and other tactics which deprive children of a separated/divorced parent, are significant and tragic problems that call out not only for social solutions (as correctly advocated by the C.B.A. committee), but for effective legislative remedies as well.

Myth:

The phrase, “rule of thumb” comes down to us from the age of patriarchy, when husbands were allowed to beat their wives, as long as the stick were no thicker than a man’s thumb.

Contra:

According to etymologist Robert Claiborne, writing in Red Herrings and Loose Cannons, a Book of Lost Metaphors, the phrase actually derives from the age-old practice of carpenters who would use the fact that the width of the male adult thumb is approximately one inch; these workmen would then use their thumbs as substitutes for rules (rulers); alternatively, early brewmasters checked the temperature of their vats with their thumbs. So, any simple procedure yielding approximate results came to be known as a “rule of thumb.”

Myth:

Male violence is not treated seriously by the courts in Canada.

Contra:

Ontario Superior Court Justice, Mary Lou Benotto, wrote the following in 1995:

Domestic abuse is abhorrent. I have never found a judicial officer who treated physical cruelty with anything but the seriousness it deserves. However, the term ”abuse” has been diluted beyond all proportion. There is scarcely a separated spouse who does not believe that he or she was in an abusive relationship. Abuse is a powerful term. But it is routinely used to describe shouting, badgering, voice raising, walking away when angry. Think for a minute about your private relationship. So as not to raise a bald allegation, the particulars given of the marital discord become very detailed.

Examine the facts. Keep an open mind: No matter what perspective from which one approaches family law matters, and in particular custody and access issues, it should become readily apparent that there are conflicting studies with respect to the roles of women and the roles of men. Judges should not assume anything about anyone simply because of gender. What is all important are the actual facts of any particular case. The same applies to lawyers who are interviewing clients and then negotiating on behalf of the clients. We should not assume anything simply because a client happens to be a father, or a mother. We must be keenly aware that we are influenced by many factors that profoundly influence us on both the conscious and on the subconscious level. Accordingly, we all have to be especially vigilant to keep an open mind.

PART 5: PERCEPTIONS OF GENDER BIAS

Is there a perception ‘out there’ that men cannot be dealt with equitably and fairly by the courts simply because they are men?

Prof. Robert Martin comments in Law Times ( April 10, 2000, p. 8 ) that much of public policy appears to respond to hysteria. So called “deadbeat dads” are a prime example of a group that is not given a fair shake. Martin concludes that: “…the courts, just like any other institution, seem to get caught up in each wave of hysteria.”

The editor of Money and Family Law, Lorne Wolfson, writes in The Lawyers Weekly (January 14, 2000):

If the development of Canadian family law is seen as a struggle between the rights and obligations of husbands and those of wives, the past few years have seen few victories for husbands. In the view of many family law practitioners, these days are bad for husbands.

Prof. James G. McLeod writes in a recent Reports of Family Law Annotation: “…it is not a good time to be a payor in family law cases.” In a 1997 annotation, Prof. McLeod writes:

If anyone needed proof that it is a bad time to be a husband or to represent a husband in family law proceedings, the Ontario Court of Appeal reasons in Munro v. Munro should provide that proof. While many wives received an inadequate share of family resources in the past, this is no longer the case. The extension of matrimonial property legislation to include pensions and business assets, the enactment of the Federal Child Support Guidelines and the increase in spousal support ensure that as a general rule a dependent spouse receives a fair share of the family resources. It is submitted that in Munro v. Munro the Ontario Court of Appeal went beyond ensuring that the wife received a fair share of the family resources. The husband was ordered to pay spousal support to a wife whose job and economic development were unaffected by the marriage, with the result that she had more income than he.

In Munro v. Munro, the Court of Appeal awarded support to a wife, notwithstanding the fact that there is no indication in the reasons that her role in the marriage caused her any economic disadvantage or provided any economic advantage to the husband. If the Court of Appeal is correct in its conclusion, entitlement to support is not an issue any longer. Every spouse who earns less than his or her partner for any reason is entitled to support. The only issues are form, duration and quantum of support.

It would appear that Prof. McLeod is commenting somewhat ‘tongue in cheek’. One would be hard pressed to find reported cases where a wife is ordered to pay spousal support to a husband simply because the wife earned more than the husband. The problems addressed by Prof. McLeod received ‘lighter’ treatment at the pen of lawyer-humourist, Marcel Strigberger. In a satirical piece (see the article attached to this paper) originally published in Law Times, Strigberger ‘reproduces’ a judgment where a very short term live-in partner succeeds in obtaining a share of her lover’s property and a substantial amount of spousal support in excess of the fellow’s gross income. We chuckle when we read the outrageous facts and the even more outrageous summaries of the legal positions spouted, but we all know that within the satire lies a very significant grain of truth.

In the newsletter published by the Ontario Family law Section of the Canadian Bar Association, Toronto family law lawyer, Joanne Stewart, recently published an entertaining and enlightening stream of consciousness article on spousal support. Ms. Stewart examines the former emphasis on the “clean break” and acknowledges that in bygone days we tended to over emphasize that aspect of spousal support. Now, she says, “I think we’ve gone too far again.” She continues:

We need to look at the family dynamic that confronts us and balance the equities so at the end of the day, everybody has a life and everybody can reasonably live with the life he/she had ended up with. … One needs incentive to get out of bed in the morning and work, work, work.

In spousal support, as in life, one cannot have it all. One needs to reset one’s expectations, with compromise and balance as key determiners.

Bluntly, I think we’re doing it wrong again. We’ve got the pendulum stuck at the high end of the swing and we have to get it back to the middle. The high end does the families we try to serve a disservice because long term it creates trouble.

Ms. Stewart does not characterize the pendulum shift in family law as a result of gender bias. However, she correctly pinpoints (in this writer’s view) the perceived unfairness of the current system in the eyes of many men. Men are doing much worse in the family courts of Canada. Women are doing much better. Often, the distinguishing factor in the cases appears to be gender.

National Post columnist, Donna Laframboise, has written extensively on the plight of men who face gender discrimination in the legal system. From examinations of domestic assault to the role of women’s shelters in providing slanted evidence in family court and their role in stereotyping all men, to suicide by men in despair who have been crushed by the courts, to the issue of supporting adult children, to examining the myth of the “deadbeat dad”, to men who are battered by their wives, and much more – Ms. Laframboise has highlighted many of the perceived problems in the system.

Canadian Senator Anne Cools has been a very outspoken critic of the gender bias that men face within our legal system. The senator has been concerned with lawyers who inflame the atmosphere by helping their clients to hurl false allegations of abuse at the other party. She has reintroduced a bill in the Senate that would make it a criminal offence for a lawyer to knowingly deceive a tribunal or to rely on false, deceptive, exaggerated or inflammatory documents (this includes affidavits and pleadings). In her speech to the Senate on February 17, 2000, the Senator described the many false allegations of child abuse that men are often faced with. She cites nearly 50 reported Canadian judgments where a judge has said that the allegations were false – most of them against men. In a recent Senate speech, Senator Cools criticizes the Child Support Guidelines for the way they disregard the custodial parent’s income and how the Guidelines have “abandoned the objects of fairness and child-centredness.” Senator Cools uses harsh words to describe the effect of the Guidelines:

The evidence indicates that the child support guidelines were never about the best interests of children but were instead about a transfer of wealth from support-paying parents, mostly fathers, to support-receiving parents, mostly mothers, under the guise of child support.

The child support guidelines used a design model intended to punish support-paying parents and intended to drive non-custodial parents, mostly fathers, out of their children’s lives, and reinforced the fracturing of relationships between children and parents in divorce.

The child support guidelines were bad economics, bad public policy and bad family law. That a purely feminist ideological theory on economic relations between men and women should be constructed into regulations under the Divorce Act, under the guise and title of child support, is a serious matter and deserves study.

A search on the Internet will reveal multitudinous examples of groups and individuals in Canada, the U.S. and elsewhere who feel that the legal system discriminates against them simply because of gender. Men and women alike share this perception but obviously from different vantagepoints. (This is not to say that the debate divides strictly along gender lines as one can find numerous women who support the view that men are discriminated against, and vice versa.) The fervour with which they express their views is testament to the strongly held views of both sides.

A Canadian site called, “Shared Parenting Forum”, is full of material that bemoans the lack of equality experienced by men in the judicial system. One part of that web site is specifically dedicated to “Gender Bias”. A recent review showed 62 separate entries, many with sub-entries. This is only one very small segment of the material that is available. There is a very strong perception on the net and in a wide body of literature that the system is stacked against men.

There is a wide spread perception that men are stereotyped, that they do face discrimination and bias within the family law system. There is a feeling that attitudes need to be changed and some would maintain that even legislation has to be changed.

PART 6: CASE LAW EXAMPLES OF GENDER BIAS

Child Support Guidelines: Gender sometimes appears to be the distinguishing factor in similar cases under the Child Support Guidelines. Unusually high expenses to exercise access to a child, can be a factor to find “undue hardship”. In one case, spending 10% of the non-custodial father’s income of $43,000.00 to exercise access was found not to constitute undue hardship. However, in another case, only 5.6% of the non-custodial mother’s annual income of $64,000.00 was held to qualify her to make a successful undue hardship argument.

In Petrocco v. Von Michalofski, the NCP mother had employment income of $27,650.00. The table amount would have been $516.00. This was contrasted with the father’s income of $90,000.00 (and the court noted his second wife’s income of $207,000.00). While the judge (Métivier, J.) did admit that the income discrepancy “alone does not necessarily constitute a hardship to the person with the lower income” (at paragraph 19), a reading of the entire decision cannot help but leave one with the impression that it did have a significant influence. The undue hardship claim was allowed and the mother was required to pay only $150.00 per month. The trial judge noted [paragraph 20] that the mother had been “financially denuded as a result of the separation and the breakdown of her health.” This could apply to many NCP fathers. If the genders had been reversed, it is doubtful that a male NCP would have been treated as compassionately.

Contrast Petrocco with Pilotte v. Pilotte where Little Prov. J. considers a case of joint custody with each parent retaining primary residence for one child. Father, whose income was $72,000.00, was paying spousal support of $8,769 to mother who had an income of $37,508.00 plus the spousal support. Father argued that requiring him to pay child support to the mother would work an undue hardship upon both him and upon the daughter who primarily resided with him. Judge Little finds such arguments to be without merit. These are the same sort of arguments that the non-custodial mother successfully used in Petrocco.

Non-custodial and split custody mothers appear to do better than non-custodial fathers. In Martin v. Gerard,, Justice Kozak allowed the NCP mother with less than one half the income of the father to pay absolutely no child support instead of the Guideline table amount of $379.00 per month. Contrast Martin v. Gerard with Paul v. Pisio, where the father, having an income of almost $40,000.00, argued two points in support of his undue hardship claim. Firstly, he would have to incur travel costs of $600 per year to exercise access. Secondly, he had a legal duty to support his new wife, his new son and his stepdaughter. The father ‘s claim was turned town on all accounts.

In the split custody case of Scharf v. Scharf, the mother improved her position to the detriment of the father. This father enjoyed only marginally more income than the mother. In MacLeod v. Druhan, Gass, J.F.C. similarly demonstrated compassion for a split custody mother who, on an application of the table amounts, would have received from the father $146.00 monthly. Instead, the judge ordered the father to pay $236.00. The basis for this decision was that “the amounts in the table do constitute undue hardship for the mother and daughter in her care.”

Not all NCP fathers are turned down, however. See Baryani v. Longe, where the NCP father had income of only $1,330.00 per month. The father argued that in order to have the children with him on access, he would have to have decent accommodation. Therefore, he could not afford the table amount of $236.00 for two children. The judge accepted this argument and reduced monthly support to $50.00 per month.

In Camirand v. Beaulne, Justice Aitken considered the situation of a NCP father who was obligated to support his child from a second marriage. The father’s income was $64,773, which translated into a standard table amount for three children of $1,145.00 per month. He had leased a car so that he could travel to see his children and to travel some distance to attend their hockey games. In responding to the father’s undue hardship claim, the judge answered that these debts were “not unusually high, nor are they the only way in which he can facilitate access to his children” (paragraph 43). Justice Aitken finds that the father will suffer hardship but that such hardship would not be “undue”. In what appears to be a slight castigation of the father for having more kids and trying to get on with his life, the judge states as follows (paragraph 44):

Knowing he had three children to support, he made the decision to have a fourth. He also made the decision to purchase a home, instead of choosing less expensive accommodation. His new spouse is choosing to work on a part-time basis to be available for their child. None of these steps were mandatory steps in the sense that they were beyond the Respondent’s control. It is perfectly understandable why the Respondent would want to do everything he has done; however, these choices carry costs. It is not for the Applicant to forego the child support Parliament has determined she is entitled to receive for the support of the three Beaulne children in order to help the Respondent support his youngest child and enable his second spouse to work on only a part-time basis.

What this case appears to say is that it is against public policy to procreate after you have already had children with your first spouse. The case appears to state that children of the first marriage take precedence before children of the second marriage. Furthermore, Justice Aitken accurately quoted other cases where a very stringent view was taken as to under what circumstances an undue hardship application could be entertained. However, in a case that this justice decided only one month later, the learned justice appeared to change her tune. Here the judge was compassionately addressing the predicament of a non-custodial mother who had just given birth to twins with her current partner. Accordingly, her income had decreased to maternity leave benefits, and her partner earned a modest income of $32,450.00. Justice Aitken contrasted this state of affairs with the custodial father who was had just moved to California where he earned $70,000.00 U.S. The judge finds that total income levels are higher in the custodial father’s household (and the judge does not use the household standards of living test found in the Schedule) and then she baldly states as follows:

[para10] Considering Ms. McColl’s responsibilities to provide support for three children in addition to Katie, I find that it would create undue hardship for her to pay child support to Mr. Hughes on behalf of Katie at this time. It is preferable if she could use the funds she otherwise would provide to Mr. Hughes pursuant to the Table amount under the Guideline to facilitate her keeping in contact with Katie and to facilitate Katie having a continuing relationship with Ms. McColl’s other children.

The reasoning in the second case is entirely inconsistent with the judge’s ruling in the first case. The key distinguishing factor is the gender of the custodial and non-custodial parent. This same judge would not allow a male non-custodial parent any relief in another earlier decision even though that parent also had a child from another relationship, access costs to visit with that child, and another child imminently due with his current spouse. Gender clearly plays a key role in determining the result.

This writer has no difficulty with judges showing compassion to a NCP mother and her three children with her second spouse. Indeed, this writer fully endorses the court’s compassionate approach. On the other hand, please consider this: Ask yourself how many cases you have read about, experienced yourself, or have seen gone down while you wait in motions court, where men similarly situated have their undue hardship claims dismissed summarily.

A careful reading of section 14 of the Guidelines would appear to indicate that the mere coming into force of the new child support scheme would be sufficient to ground an application to vary child support. It should not matter whether that variation would yield a higher or lower number. Section 14 states:

Circumstances for variation — For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances:

(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

Subsection 17(4) of the Divorce Act states:

Factors for child support order — Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

The Saskatchewan Court of Appeal had no problem with reading these provisions according to their plain meaning. Other courts have gone through amazing machinations to come to the conclusion that section 14 ( c ) of the Guidelines does not mean what it clearly says. Indeed, one Ontario judge had a very difficult time reading any sense into precedent but in the end, she felt bound by the doctrine of stare decisis to follow the lead of the province’s appeal court. The Guidelines were supposed to bring predictability and uniformity to child support. One is left with the impression that these goals apply only when the custodial mother seeks to raise the amount of child support on the basis that May 1, 1997 has come and gone. When the NCP father seeks to lower the amount of child support, relying on the same grounds, then all of the sudden section 14 ( c ) does not really say what the plain language says it says. It is difficult to find any logical reason for courts to destroy the legislative scheme as they have done. One is inextricably led to the sad conclusion that courts will apply the standard table amounts where the custodial parent will receive more money but not apply the standard table where this would yield lower net amounts of child support.

Spousal support and property: It is not only Guidelines cases that evidence gender bias. Spousal support and property cases sometimes also appear to reflect a degree of gender bias. Prof. James McLeod writes:

After an initial flurry, courts don’t seem to feel the need to justify their decisions by reference to Bracklow v. Bracklow (1999) 44 R.F.L. (4th) 1 (S.C.C.). Take Court v. Cudmore, [2000 CarswellPEI 41 (P.E.I. T.D.)] where DesRoches, J. held that a husband wasn’t entitled to support because he couldn’t prove he suffered any economic disadvantage from the roles adopted in marriage. No talk of Bracklow or dependency or contractual support. Could it be that husbands don’t have the same support entitlement as other spouses?

The wife was awarded an unequal division of property [in Court v. Cudmore] because the husband didn’t pull his weight. No abdication mind you. Just not pulling his weight. You won’t find many cases to support this interpretation of the Family Law Act in Ontario or P.E.I. (we have essentially the same Act). Or do husband’s have different property rights as well as different support rights?

Had time permitted, this writer would have liked to explore in this paper the development of the law of spousal support over the last twenty years in Canada. We would perceive that there have been significant changes and that men, except for a very brief period in the late 80’s and very early 90’s, have not faired too well. Especially where one combines child support with spousal support, I dare say that courts by and large have given quite short shrift to the man’s ability to pay while still providing for himself and for the children when they are with him. In addition, by legislative design, the courts must ignore the NCP’s direct expenditures on his children. Nothing is budgeted for that category. The end result in many cases has been that divorced men have become significantly more impoverished than divorced women.

Should we lawyers and judges quietly accept the current situation where advice giving and decision making reflects a significant degree of gender bias? Is there judicial authority that tells us this is not acceptable in Canada? Let us proceed to the next section of this paper to examine such issues.

PART 7: JUDICIAL ADMONITIONS AGAINST GENDER BIAS AND STEREOTYPING

Judges: Some judges in family law cases have cautioned us against permitting stereotypical attitudes to overly influence our attitudes and judicial decision making. The division of opinion between the majority and the minority in the Alberta appellate decision of Roebuck v. Roebuck highlights the tensions between the competing approaches. Justice Kerans, for the majority, rejects the “tender years principle” as being any sort of decisive factor. Justice Kerans supported the trial judge who stated at paragraph 46:

There is no longer, in my view, any historic or traditional right that favours either mother or father. This issue must be decided on the merits of this case.

Commenting on this principle, Justice Kerans stated at paragraph 49:

Should a pre-school child be with the mother? Spence J. (dissenting) in Talsky describes the answer “yes” as “common sense”. Often, when we invoke common sense, we intend to invoke unstated conventional assumptions. As Einstein rather provocatively said, “common sense is the collection of prejudices acquired by age 18”. I suppose that there is no harm in this unless the unstated conventions come to be doubted. That the female human has some intrinsic capacity, not shared by the male, to deal effectively with infant children is an assumption that was once conventionally accepted but is now not only doubted but widely rejected.

Justice Kerans than referred to the famous “frills and flounces” quote of Justice Roach as follows:

As recently as 1955, this rhapsodic commentary by Roach J.A. in the 1955 case of Bell v. Bell, [1955] O.W.N. 341 at 344 (C.A.), attracted no adverse comment:

No father, no matter how well-intentioned or how solicitous for the welfare of such a child, can take the full place of the mother. Instinctively, a little child, particularly a little girl, turns to her mother in her troubles, her doubts, and her fears. In that respect, nature seems to assert itself. The feminine touch means so much to a little girl; the frills and flounces and the ribbons in the matter of dress; the whispered consultations and confidences on matters which to the child’s mind should only be discussed with Mother; the tender care, the soothing voice; all these things have a tremendous effect on the emotions of the child. This is nothing new; it is as old as human nature …

Justice Kerans criticized this approach at paragraphs 51 and 52:

This view confuses cultural traditions with human nature; it also traps women in a social role not necessarily of their choosing, while at the same time freeing men: if only a mother can nurture a child of tender years, then it is the clear duty of the mother to do so; because the father cannot do it, he is neither obliged nor entitled even to try. Also, it is seen by some as self-perpetuating: by putting the female child in the custody of somebody who accepts the maternal role model so described, the rule ordains that she will have just such a role model at close hand during her most impressionable years. Thus, the “tender years principle”, which at first glance seems only innocently sentimental, is seen by many as part of a subtle, systemic sexual subordination.

In my view, it is no part of the law of Canada that a judge is bound to say that human nature dictates that only females can perform that parental role labelled as “maternal”. I do not agree with Roach J.A.; I do not agree with the appellant-mother.

On the contrary, the minority opinion of Justice McGillivray also quotes Bell v. Bell (but approvingly) as well as more recent cases that adopted the “tender years principle”. His Lordship concluded (at paragraph 22) that: “He [the trial judge] should have recognized the wife’s advantage as a mother in relation to a child of tender years.”

Justice Kerans rejects this genderist approach in place of a sensible view that emphasizes the needs of the individual child and the relative abilities of each parent to meet those needs. He states at paragraphs 55-56:

In what might be called the supra-modern marriage, strenuous efforts are made to avoid any role distinction based upon sex. The many tasks of homemaking and child-rearing — indeed, child-bearing — are shared as completely as possible, and not on any gender basis. It follows, of course, that both fathers and mothers must, if this model is to work, acquire the skills and make the commitment which is required for effective parenting.

Taken in this context, the remarks made by judges in the past about “tender years principle” do not come to much. All that can be said in this age of changing attitudes is that judges must decide each case on its own merits, with due regard to the capacities and attitudes of each parent. We should take care not to assign to this idea or that (all actually of recent origin and unique to our society) the august status of being the only one consistent with human nature or common sense. And we must continue to recognize that the attitude toward child-rearing of the parties to the marriage which the judge is being asked to dissolve could reflect traditional, modern or supra-modern ideals or, more likely, some confused and contradictory spot on the spectrum between these extremes. For example, there is no point giving a father the custody of a child of tender years if that father believes child-rearing to be “women’s work”. That would not be in the best interests of the child. And we must remember that our role is not to reform society; our role is to make the best of a bad deal for the child who comes before us for help.

Prof. James McLeod writes in a case commentary on the case of Bendle v. Bendle:

Rules of “common sense” should not propogate or continue social expectations in parents and others that one parent, in today’s society, may be seen or assumed to have a greater involvement in the children’s lives or be better able to provide for the children.

In the accompanying case, Justice Vogelsang quoted extensively from Roebuck, supra, but did not explicitly adopt the approach of Justice Kerans. Justice Vogelsang did, however judge the case on its own merits, free from prejudice and stereotype when he stated:

Although provocative and carrying some persuasive authority, I am not bound, in my view, by this decision of an appellate court of another province. I do not wish, in this case, to adopt completely the view of the Alberta Court of Appeal with respect to the tender years doctrine. Nevertheless, the case before me is a clear example of reversal of our traditional views of parental relationships and roles, the applicant father now capably and fully responding to the needs of his daughters.

This reluctance to adopt stereotypical gender views was followed in part in Tyabji v. Sandana :

Stereotypical gender views have no place in an award of custody. Some of the evidence showed that one of the interim orders for custody in this matter was intemperately criticized by one witness based upon an entrenched view of gender rights. That showed a misunderstanding of the principles of law which govern matters of custody. Custody will not be awarded on the basis of any preconceived idea about daughters being with mothers and sons with fathers, or about age-appropriate placements, or about the rights of working parents of either sex not to be deprived of custody simply because they have a particular career path. In every case the court must determine the best interests of the children and all else must give way to that. I refer to Williams v. Williams (1989), 24 R.F.L. (3d) 86 (B.C. C.A.), and to R. v. R. (1983), 34 R.F.L. (2d) 277 (Alta. C.A.). However, I am alive to the common sense suggestion that, often, small children will have formed a stronger emotional and physical bond with their mother. That must be weighed against any evidence which shows otherwise in a particular case, and against any evidence which shows that in spite of that bond at one stage of the children’s lives, as strong a bond has since formed with the other parent, or that the probable futures of the parents puts one, rather than the other, in a position better to serve the best interests of the children from the time of the trial onwards.

In Tyabji, Justice Spencer would not go so far as to entirely negate “the common sense suggestion that, often, small children will have formed a stronger emotional and physical bond with their mother”, but the learned Justice did clearly judge this case on its own merits. He reviewed the evidence and examined carefully the plans of each parent for the children. Weighing all the factors of the particular case before the court, a decision was made to entrust the three children to the custody of their father.

Justice Pardu in a 1994 decision, analyzed whether or not there was a presumption (read “bias”) in Canadian family law in favour of the mother. Quoting from the 1993 Supreme Court of Canada decision in Young v. Young, Justice Pardu concluded that there was no such presumption:

Gender

117 Counsel on behalf of the mother argues that little girls belong with their mothers and thus squarely raises the issue of whether or not there is a gender based preference to give custody of young female children or young children generally to female parents.

118 In the past a presumption of maternal preference has been expressed in cases such as Talsky v. Talsky [1976] 2 S.C.R.

119 As indicated by McLachlin, J. in Young v. Young, [1993] 8 W.W.R. 513 at 527,

This presumption, like the paternal preference rule, was justified on pragmatic grounds; the welfare of the child was the often cited reason for the presumption. So justified, the presumption carried the seeds of its own demise. Courts increasingly looked behind the preference to focus directly upon what was in the child’s best interest, which was sometimes found to conflict with a maternal preference.

In S. v. S., 35 R.F.L. (3d) 400 at 406 Houlden, J.A. indicated at page 406,

The ‘tender years doctrine’ is a principle of common sense; it is not a rule of law or a legal presumption.

It was made clear by Grandpre, J. in Talsky v. Talsky (supra) that the paramount consideration in custody matters is the welfare of the child.

120 The tender years doctrine has its origins in the years when the dominant social pattern was for males to be breadwinners and females to be homemakers. As was indicated by both Drs. Graham and Caplan, historically the dominant social pattern was for young girls to take their identity from their mother. This was so in large part because in the past, the substantial role foreseen for young girls was that of a homemaker as well. Living with a homemaker mother prepared a young girl for the role she would play as an adult.

121 L’Heureux-Dubé, J. said in Young v. Young, supra, at page 561,

As has been widely observed by those studying the nature and sources of changes in family institutions, popular notions of parenthood and parenting roles have undergone a profound evolution both in Canada and elsewhere in the world in recent years…

One of the central tenets of this new vision is that child care both is no longer and should no longer be exclusively or primarily the preserve of women. Society has largely moved away from the assumptions embodied in the tender years doctrine that women are inherently imbued with characteristics which render them better custodial parent. Moreover, both economic necessity and the movement toward social and economic equality for women have resulted in an increase in the number of women in the paid work force. Many people have tended to assume that a natural result of this change would be the concurrent sharing of household and childcare responsibilities with spouses, companions, and of course fathers. In addition, the increased emphasis on the participation of fathers in the raising of children and financial support after divorce gave rise to claims by fathers and fathers’ rights groups for legislative changes that would entitle them to the benefit of neutral presumptions in custody decisions.

and

The custody provisions of the Act [the Divorce Act] reflect to some degree, this evolving view of parental roles. Under the best interests test, courts no longer automatically grant custody according to the tender years doctrine. Instead, decisions are made according to the best interests of the child without the benefit of a presumption in favour of the mother, or for that matter, the father.

This philosophy is reflected in the provisions of the Children’s Law Reform Act, R.S.O. 1990. c.C.12,

24.- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child.

(2) In determining the best interests of a child for the purposes of an application under this Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the care and upbringing of the child;

(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the care and upbringing of the child;

(f) the permanence and stability of the family unit with which it is proposed that the child will live; and

(g) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(3) The past conduct of a person is not relevant to a determination of an application under this Part in respect of custody of or access to a child unless the conduct is relevant to the ability of the person to act as a parent of a child. 1982, c.20, s.1, part.

I do not view the decision of S. v. S., 35 R.F.L. (3d) 400 (Ont. C.A.) as supporting the proposition that a gender based preference continues to exist in Ontario. In that case it was found that the trial judge misapprehended the evidence of an expert, and this misinterpretation created an erroneous negative prognosis of harm to the child if she continued in her mother’s care. The mother had had interim custody of the child from separation in 1987 to the trial in 1990. Houlden, J. said at page 406,

Under the tender years doctrine, in order for a court to deprive the mother of a young child of custody, where the child has been in the mother’s care and custody, there must be very compelling reasons.

Rather than constituting a gender based preference, the court was concerned about continuity in the child’s care. The child was healthy, emotionally and socially secure and there was no serious evidence the mother was harmful to the child. The court referred to the evidence of Dr. Young, a psychologist,

If a child is doing reasonably well in a reasonably good environment, when we look at making changes, changing the status quo, change in itself may create some problems and we’re not sure that the alternative, again, I’m a psychologist not a crystal ball gazer, is necessarily going to substantially improve the child’s situation. So generally speaking, I would recommend against changing the custodial situation of a child unless there is clear evidence that the change would yield significant benefit to the child.

I conclude that there is no gender based presumption in custody matters. The focus is on the best interests of the child.

Madam Justice Huddart of the British Columbia Court of Appeal similarly cautioned against using presumptions in family law. She stated:

It is now clear that legal and factual presumptions have no place in an enquiry into the best interests of a child, however much predictive value they may have. The Supreme Court of Canada has stated absolutely clearly that such presumptions detract from the individual justice to which every child is entitled.

In that same case, Justice Huddart cautioned that we should employ a fact based and individualized approach to the resolution of child custody matters:

26 In a country where there is no common parenting philosophy it may not be surprising that the legislatures have chosen to mandate individual enquiries into the individual child’s best interests, rather than to impose a community view of parenting by laying down stricter guidelines for the exercise of a court’s authority to decide what is in a child’s best interests when parents cannot. The analysis of the child’s needs and resources will be contained by the particular child’s extended family and community.

27 Any thought that an enquiry into a child’s best interests is to be “undertaken with a mindset that defaults in favour of a preordained outcome absent persuasion to the contrary” was dispelled in Gordon, supra at 58. Writing for the majority, McLachlin J. emphasized the individual nature of every enquiry at 58:

But Parliament did not entrust the court with the best interests of most children; it entrusted the court with the best interests of the particular child whose custody arrangements fall to be determined. Each child is unique, as is its relationship with parents, siblings, friends and community. Any rule of law which diminishes the capacity of the court to safeguard the best interests of each child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry into the needs, means, condition and other circumstances of “the child” whose best interests the court is charged with determining. “[G]eneral rules that do not admit of frequent exceptions can[not] evenly and fairly accommodate all of the varying circumstances that can present themselves”: per Morden A.J.C.O. in Carter v. Brooks, supra, at p.51. The inquiry is an individual one. Every child is entitled to the judge’s decision on what is in its best interests; to the extent that presumptions in favour of one parent or the other predetermine this inquiry, they should be rejected. “No matter what test or axiom one adopts from the many and varied reported decisions on this subject, each case must, in the final analysis, fall to be determined on its particular facts and, on those facts, in which way are the best interests of the children met”: Appleby v. Appleby, supra, at p.315.

Non family law cases: In areas of the law other than “family”, some judges have likewise cautioned us against permitting stereotypical attitudes to influence our attitudes and judicial decision making. For example, should injured females receive less compensation than injured men in personal injury actions because historically women have earned less than men? Should we apply statistics that reinforce gender stereotypes and thus diminish damages for all females, regardless of their personal characteristics, abilities and foregone employment prospects for the future? In one noteworthy case, Justice Cecelia Johnstone decided 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. Justice Johnstone stated (writer’s emphasis):

[para469] It is entirely inappropriate that any assessment I make continues to reflect historic wage inequities. 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. Where we differ is that I will not sanction the “reality” of pay inequity. The societal trend is and must embrace pay equity given our fundamental right to equality which is entrenched in the constitution. The courts have judicially recognized in tort law the historical discriminatory wage practices between males and females. The courts have endeavoured to alleviate this discrimination with the use of male or female wage tables modified by either negative or positive contingencies. However, I am of the view that these approaches merely mask the problem: how can the Court embrace pay inequity between males and females? I cannot apply a flawed process which perpetuates a discriminatory practice. The application of the contingencies, although in several cases reduce the wage gap, still sanction the disparity.

[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. Equality is now a fundamental constitutional value in Canadian society. As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. 129, there have been profound changes in women’s labour force participation. Since Brooks there has been even greater accommodation of the parental needs of working women. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women. 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. 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.

Justice Johnstone justifiably jettisons discriminatory broad-based stereotypes with respect to women’s position in the labour market. 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. Justice Johnstone is quite correctly telling us that outmoded societal biases with respect to women’s wages are inconsistent with equality before the law. Her Honour states: “I cannot apply a flawed process which perpetuates a discriminatory practice.The application of the contingencies, although in several cases reduce the wage gap, still sanction the disparity.

[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. Equality is now a fundamental constitutional value in Canadian society. As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. 129, there have been profound changes in women’s labour force participation. Since Brooks there has been even greater accommodation of the parental needs of working women. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women. 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. 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.

Justice Johnstone justifiably jettisons discriminatory broad-based stereotypes with respect to women’s position in the labour market. 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. Justice Johnstone is quite correctly telling us that outmoded societal biases with respect to women’s wages are inconsistent with equality before the law. Her Honour states: “I cannot apply a flawed process which perpetuates a discriminatory practice.

Justice Johnstone states: “… there have been profound changes in women’s labour force participation. Since Brooks there has been even greater accommodation of the parental needs of working women. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women.” “Profound changes in women’s labour force participation” – There have indeed been societal changes in the way women work in society, in their opportunities for advancement, in the level of their wages. Perpetuation of stereotypes has no place in assessment of future wage loss for personal injuries. Perpetuation of stereotypes has no place in determination of family law issues.

In the area of wrongful dismissal law, the Ontario Court of Appeal rightfully admonished a trial judge who failed to realize that males and females should be treated equally. The trial judge had awarded $120,000.00 to an autoworker – supervisor for wrongful dismissal. The plaintiff (a GM supervisor) had sexually harassed a number of his female workers and was, I would submit, quite properly terminated. The appellate court sensibly rejected the plaintiff’s “rough environment” argument: The supervisor had argued that the GM plant is a rough place where rough language and sexually suggestive banter is common place. Justice Carthy felt that the trial judge’s reasons demonstrated “a complete lack of appreciation of the modern concept of equality of the sexes.” The Court of Appeal tells us here that you cannot engage in workplace sexual innuendo with subordinate workers. In other words, the Ontario Court of Appeal is striking a needed blow in favour of gender equality.

The cases tell us that the workplace must not be a source of any kind of gender discrimination; sexual harassment is a particularly invidious expression of discrimination and it will not be countenanced under any circumstances.

The outlooks expressed by Justices Johnstone and Carthy make eminently good sense. Their reasons are consistent with the Charter and they probably strike a responsive cord amongst most lawyers and judges.

Our highest court had occasion not to long ago to enter into the debate over gender stereotyping. In R. v. Ewanchuk, the Supreme Court of Canada had occasion to review Alberta Court of Appeal Justice McClung’s stereotypical notions of a woman’s responsibility for allegedly inviting sexual assault. Justice McClung’s views were those that might have been thought or expressed in a bygone era. Briefly, the Supreme Court of Canada was hearing an appeal of a sexual assault acquittal in the Alberta trial court that was upheld by the Alberta Court of Appeal. The legal issue in the case appeared to be whether or not the complainant had consented, as consent is understood by the Criminal Code. (Justice L’Heureux-Dubé did not characterize the issue that way. See below.) The Supreme Court of Canada convicted the accused. Where the case becomes interesting for those concerned with gender bias and stereotyping is the additional judgment proffered by Madam Justice L’Heureux-Dubé. Madam Justice L’Heureux-Dubé states [at para 82]:

This case is not about consent, since none was given. It is about myths and stereotypes…”

The judge then goes on to quote an author who summarizes the various myths of rape (although this case was not a rape case). She criticized McClung, J. for his references to the complainant’s manner of dress and her living arrangements with her boyfriend and others. Madam Justice L’Heureux-Dubé then stated [at para 89]:

These comments made by an appellate judge help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the sexual assault, or her sexual experience signals probable consent to further sexual activity.

Reference was also made to various other comments by Justice McClung that provoked harsh criticism from Justice L’Heureux-Dubé. Justice L’Heureux-Dubé demolished each of the gender stereotypes expressed by the Alberta justice. 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. 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. 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. Madam Justice McLachlin wrote a brief concurring opinion. 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. … On appeal, the idea also surfaced that if a woman is not modestly dressed, she is deemed to consent. Such stereotypical assumptions find their roots in many cultures, including our own. They no longer, however, find a place in Canadian law.

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.”

Just as the courts have stridently denounced gender bias in non family law areas, so too should the family courts eschew any suggestion of gender bias in their decision making processes.

PART 8: CONCLUSIONS

Despite the various admonitions in both family and non family law cases against falling into the trap of stereotyping the litigants, there is nonetheless a fairly widely held belief that in family law matters, men are not dealt with absent any gender bias. The Supreme Court justices have repeatedly attacked stereotypical assumptions. We are told that eradicating stereotypes is an important task to accomplish. This writer agrees! Let us eradicate all stereotypes! Can any evenhanded and open-minded jurist in this country argue that these principles should apply only to sexual assault cases? Can anyone seriously maintain that Justice L’Heureux-Dubé’s admonitions with respect to gender stereotyping can apply only to women but not to men? Should not these just principles be applied across the board? And should not such across the board application include family law? 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?

“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.” – Should this judicial pronouncement pertain only to rape and sexual assault? Should it be permissible to assume the worst of men simply because they are men?

There is sufficient judicial authority, in both the family law sector and elsewhere, that should require courts to jettison once and for all the skewered methodology of assuming parenting abilities based upon mere gender. An individual parent’s ability to meet the individual needs of a particular child depends on a very wide variety of factors. That there is a commonly held perception that men as a class do not have a hope of succeeding speaks loudly to the perceived injustice in our judicial system. We lawyers and judges can do much to bring a sense of fairness into the system. However, in order to succeed in this task, we will be required to critically examine and hopefully discard our prejudices, stereotypical assumptions and ingrained biases.

In the area of child support, spousal support and property division – should not the law be applied in a gender-neutral fashion? When the law is not being thus applied, it behooves the court to clearly articulate what factors have led to a certain conclusion. Historically, women have suffered wage discrimination in the workplace. Many women have indeed assumed the bulk of childcare responsibilities during the marriage and have consequently suffered economic prejudice when attempting to reintegrate into gainful employment. However, courts should articulate how such factors impact upon the facts of the particular case. Generalities should not suffice. Furthermore, because one side has suffered prejudice, that does not necessarily mean that the male partner has caused it all. Are courts acting in an evenhanded manner when they visit upon the man the huge bulk of the responsibility for the woman’s economic disadvantage?

In order to promote respect for the legal system, it behooves lawyers and judges to be sensitive to the individuals before them. Just as it is politically incorrect (and contrary to law) to judge an individual by the colour of his/her skin, so too should we be loathe to judge someone based on his/her gender. It is the evidence in each particular case that is important: What role ‘on the ground’ did this particular parent play with the children? What does this particular parent have to offer this particular child at this point in time? What was the economic division of labour in this particular household and how has the breakdown of the marriage impacted upon this particular couple? What will be the economic result of this particular support award for these particular people? These are some of the questions that each and every family law lawyer and judge should be asking herself /himself.

Where are we now with respect to Gender Bias? We are the principal conductors within a system that is rife with gender bias. We are guilty of being influenced by our biases and prejudices as opposed to addressing the actual evidence in each and every individual case. We should be more vigilant. We should constantly challenge ourselves, question our own motivations, and critically examine our approaches to family law in general. We should be exceptionally mindful and sensitive to the emotional and financial stress that our ‘consumers’ experience. We should not lose sight of these weighty responsibilities whether we are lawyers, judges or even legislators.

ENDNOTES

1. http:// www.wlansw.asn.au/courtinitiatives.htm – June 1, 1999.

2. Professor Kathleen E. Mahoney: “Gender Bias in Judicial Decisions” (1993) Judicial Officers Bulletin 27.

3. Carey Linde: “Unethical Lawyers Abuse Children”, Submission to the Special Senate Commons Joint Committee on Custody and Access, http://www.divorce-for-men.com/downloads.htm.

4. . An Act to amend the Law relating to the Custody of Infants, 2 & 3 Vict. (1839), c. 54 (U.K.) – known as Lord Talfourd’s Act. This Act also allowed for the mother’s visitation rights to children in the custody of the father.

5. . Susan B. Boyd: “From Gender Specificity to Gender Neutrality? Ideologies in Canadian Child Custody Law” in Carol Smart and Selma Sevenjuijsen, ed., Child Custody and the Politics of Gender (London and New York: Routledge, 1989) at 130.

6. . Ibid. at 132.

7. . Guardianship of Infants Act, 1886, 49 & 50 Vict., c. 27, as noted in case comment on Young v. Young by W. Glen How and Sarah E. Mott-Trille, (1991) 29 R.F.L. (3d) 225.

8. . Anne Marie Delorey: “Joint Legal Custody: A Reversion to Patriarchal Power” (1989), 3 CJWL 33. The author notes that custody was often denied to the mother where she did not fulfil the role expected of her. “Marital misconduct” became a ground to deny custody. See also Nicholas Bala, “A Report from Canada’s ‘Gender War Zone’: Reforming the Child-Related Provisions of the Divorce Act” (1999), 16 Can. J. Fam. L. 164 at 166 – 169, with respect to the historical development of Canadian family law.

9. One example of how media coverage reflects an acute insensitivity to the suffering of men is: Adam Jones: “The Globe and Male’s – An Analysis of Gender Issues in Canada’s National Newspaper”, 1992, http://users.erols.com/jkammer/G&M.html. Amongst other topics, Mr. Jones discusses how men’s victimization as victims of violence and suicide is ignored or trivialized in the press. It would appear that the popular press cannot conceive “man” as “victim”. Colman asserts that this perception naturally carries over into family law. Another examination of gender bias and the media can be found at: Armin A. Brott: “Gender Bias in the Media: The Other Side of the Story”, Nieman Reports, Winter 1994, Nieman Foundation, Harvard University, reproduced at – http://www.erols.com/jkammer/nieman.html.

10. In a National Post/COMPAS poll taken in February 1999, 51% of men surveyed said women had too much control in divorce courts but only 20% of women held to that view. 44% of women said they needed more clout in the courts. National Post, March 2, 1999.

11. P. Susan Penfold: ”Questionable Beliefs About Child Sexual Abuse Allegations During Custody Disputes” (1997), 14 Can. J. Fam. L. 11. These assumptions (at p. 13) are:

(1) False allegations are very common during child custody disputes;

(2) In the context of a child custody dispute, false allegations are deliberately deceitful and stem from parental coaching or from the child lying;

(3) False allegations are made by mothers who are vindictive, mentally ill or have been abused themselves as children;

(4) Referral for physical examination will definitely demonstrate whether or not the child has been sexually abused;

(5) A skilled interviewer can discover whether a child has been abused or not;

(6) Assessment of the alleged perpetrator can rule out the possibility of abuse.

12. Ibid., at 25.

13. Melanie Rosnes: “The Invisibility of Male Violence in Canadian Child Custody and Access Decision-Making” (1997), 14 Can. J. Fam. L. 31.

14. Ibid., at 60.

15. I have borrowed liberally from a paper by Carey Linde: “A Case for Fathers and Co-parenting”, which can be downloaded from: http://www.divorce-for-men.com/downloads.htm. I have also borrowed extensively from Sanford Braver and Diane O’Connell: Divorced Dads: Shattering the Myths. The surprising truth about fathers, children and divorce, Penguin-Putnam, New York, 1998.

16. Some examples are: Keast (1986), 1 R.F.L. (3) 140 (Ont. H.C.); Linton (1988), 11 R.F.L. (3d) 444, 29 E.T.R. 14, 64 O.R. (2d) 18, 49 D.L.R. (4th) 278 (Ont. H.C.); Wedgwood (1989), 74 Nfld & P.E.I.R. 198, 23 A.P.R. 198 (Nfld U.F.C.); Benson (1994), 3 R.F.L. (4th) 291, 120 Sask. R. 17 (Sask. C.A.): Moge (1992), 43 R.F.L.(3d) 345 (S.C.C.).

17. 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) at fn. 96 of the McNeely article.

18. i8iiKatherine Webster: “Influential Study on Post-Divorce Gap in Income is Wrong”, Associated Press, May 17, 1996, http://www.bennett.com/gender/weitzman.html

19. Dr. Sandford Braver is quoted in the National Post (1 December 1998) as stating: “It would probably be fair to say that Weitzman’s findings are the most widely known and influential social science results of the last 20 years. … If anyone needed any evidence to fuel their outrage against divorced fathers, to contribute to their bad divorced dads beliefs … this is what they were waiting for.”

20. 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).

21. Id. cf. With respect to Weitzman’s acknowledgement that her study was in error, see also Katherine Webster: “Influential Study on Post-Divorce Gap in Income is Wrong”, Associated Press, May 17, 1996, http://www.bennett.com/gender/weitzman.html. This article also reports on another sociologist who reanalyzed Weitzman’s data and came up with drastically different percentages: 27% drop in women’s standard and 10% rise in men’s standard. CF: Susan Faludi: Backlash – The Undeclared War Against American Women, Crown Publishers, Inc., New York, 1991, at p. 21.

22. Susan Faludi: Backlash – The Undeclared War Against American Women, Crown Publishers, Inc., New York, 1991, at pp.19 – 24.

23. Source for parts of this summary: Book Review by Cathy Young in The Detroit News, October 21, 1998.

24. Ross Finnie, Carolina Gilberti, Daniel Stripinis: “An Overview of the Research Program to develop a Canadian Child Support Formula”, Department of Justice, Canada, 1995.

25. Ibid., pp. 3-4, 31-34.

26. Ibid., at p. 34.

27. Ibid., at p. 31.

28. Ibid., at p. 4.

29. Id.

30. Ibid., at p. 35.

31. Ibid., at pp. 35 – 36.

32. Ibid., at p. 36.

33. Baker v. Baker (1996), 22 R.F.L. (4th) 13, 182 A.R. 41 (Alta Q.B.).

34. Joan B. Kelly: “The Determination of Child Custody”, Children and Divorce, Vol. 4 No. 1, Spring 1994.

35. Edward Kruk: “Psychological and Structural Factors Contributing to the Disengagement of Noncustodial Fathers After Divorce”, Family and Conciliation Courts Review, Vol. 30, No. 1, January 1992.

36. Dr. Richard A. Warshak’s submission to the Joint Interim Committee on Family Law for State of Missouri. Dr. Warshak is author of “The Custody Revolution – The Father Factor and the Motherhood/Mystique”.

37. Kyle D. Pruett: The Nurturing Father, Warner Books, 1987.

38. Graeme Russell and Norma Radin: “Increased Paternal Participation”, Chapter 9 in Fatherhood and Family Policy edited by Michael E. Lamb and Abraham Sagi, Lawrence Erlbaum Associates, 1983, page 157. See also: Howard Dubowitz, MD, MS; Maureen M. Black, PhD; Mia A. Kerr, MS; Raymond H. Starr Jr, PhD; Donna Harrington, PhD: “Fathers and Child Neglect”, Archives of Paediatric and Adolescent Medicine, Volume 154, No. 2, February 2000, reproduced at: http://archpedi.ama-assn.org/issues/v154n2/full/poa9069.html. A recently published book, authored by Professor Susan Golombok of City University in London, suggests that boys adjust better after divorce when they live with their fathers rather than their mothers. See: Sunday Times, May 21, 2000: http://www.sunday-times.co.uk/news/pages/sti/2000/05/21/stinwenws01021.html

39. K. Alison Clarke-Stewart and Craig Haywood: “Advantages of Father Custody and Contact For the Psychological Wellbeing of School-Age Children” (1996), 17 Journal of Applied Developmental Psychology 239.

40. B.B. v. T.H.B., unreported, digested at [1999] O.J. No. 45 (Ont. Fam. Ct) Philp, J., 4 January 1999, at paragraph 148.

41. Dr. Richard A. Warshak: The Custody Revolution – The Father Factor and the Motherhood/Mystique, Poseidon Press. 1992)

42. Id.

43. Id.

44. Michael E. Lamb: The Role of the Father in Child Development, Whiley Press, 1976.

45. Id.

46. Id.

47. Shirley M.H. Hanson and Frederick W. Bozett: Dimensions of Fatherhood, Sage Publications, 1985.

48. Canadian Bar Association National Family Law Section Chairperson, Heather McKay, as reported in The Lawyers Weekly, May 29, 1998, p. 7: “Denial of child access not the main problem: CBA”.

49. Julie A. Fulton: “Parental Reports of Children’s Post-Divorce Adjustment”, Journal of Social Issues, Vol. 35, 1997, p. 133 However, the study is silent on what percentage of custodial fathers do the same. Fifty-three percent of the non-custodial fathers claimed their ex-wives had refused to let them see their children.

50. Glynnis Walker: Solomon’s Children – Exploding the Myths of Divorce, New York: Arbor House, 1986.

51. Excerpt from a Letter to the Editor, The Lawyers Weekly, July 24, 1998, by Gene C. Colman.

52. The Fathers’ Rights and Equality Exchange Web Site: http://www.dadsrights.org/myth_content.shtml

53. Justice Mary Lou Benotto: “Ethics in Family Law: Is Family Law Advocacy a Contradiction in Terms?”, Presented to the Advocates’ Society Conference in Nassau, Bahamas, 2 December 1995, http://www.razberry.com/raz/divorced/benotto.htm.

54. Andrews v. Andrews, 1999 CarswellOnt 3019, 50 R.F.L. (4th) 1, 124 O.A.C. 259, 45 O.R. (3d) 577 (Ont. C.A.).

55. Munro v. Munro, 1997 CarswellOnt 3905, 33 R.F.L. (4th) 464 (Ont. C.A.).

56. Marcel Strigberger: “Strike One, You’re Out”, http://www.legalhumour.com/articles/Women.htm Reproduced at the conclusion of this paper with the kind permission of Mr. Strigberger.

57. Joanne Stewart: “To Have it All”, Matrimonial Affairs, Vol. 11, No. 6, April 2000, 22 – 24.

58. Various articles by Donna Laframboise. See her website at: http://www.razberry.com/.

59. Bill S-9, Second Session, Thirty-sixth Parliament, 48 Elizabeth II, 1999.

60. Debates of the Senate, Second Session, Thirty-sixth Parliament, Volume 138, February 17, 2000, pp. 655 – 662.

61. Debates of the Senate, Second Session, Thirty-sixth Parliament, Volume 138, April 6, 2000, p. 1030.

62. http://www.sharedparenting.com/sharedpa/cgi-bin/HyperNews/get/issues/public-bias.html

63. Paulhus v. Regnier, 1997 CarswellSask 742 (Sask. Q.B.), Wright, J., September 17, 1997.

64. Sutherland v. Sutherland, [1998] B.C.J. No. 342 (B.C.S.C.), Edwards, J., February 10, 1998.

65. Petrocco v. Von Michalofski (1998), 36 R.F.L. (4th) 278, 51 O.T.C. 110 (Ont. Gen. Div.), January 16, 1998. This decision was upheld on appeal: 1998 CarswellOnt 4813, 43 R.F.L. (4th) 372 (Ont. Div. Ct).

66. Pilotte v. Pilotte [1998] O.J. No. 865 (Ont. Prov. Div.).

67. Martin v. Gerard, [1997] O.J. No. 2517, (Ont. Gen. Div.), June 16, 1997.

68. Paul v. Pisio, [1988] S.J. No. 243 (Sask. Q.B., Fam. Law Div.), Dovell, J., April 17, 1998.

69. Scharf v. Scharf, [1998] O.J. No. 199, (Ont. Gen. Div.), January 16, 1998.

70. MacLeod v. Druhan (1997), 34 R.F.L. (4th) 206 (N.S. Fam. Ct), Gass, J.F.C.

71. Baryani v. Longe, [1998] O.J. No. 606, (Ont. Gen. Div.), J. Wright, J., February 10, 1998.

72. One has to wonder to what extent the law applies and to what extent the predispositions of the judge may prevail. The same judge gave favourable consideration to another NCP father. Seeley v. McKay, [1998] O.J. No. 2857, (Ont. Gen. Div.), Wright J., March 26, 1998 – In that case, the father pointed to his access costs involved with his 250 kilometer drive to see the children and to the more important point that in a previous written agreement, the two sides had agreed that this was factor that “warranted special consideration” (paragraph 23). Justice Wright appeared to have been persuaded that since the parties had previously agreed that imposition of any child support would impose a hardship upon the father such that their agreement was that no child support was to be paid, therefore the court should reduce the table amount. And Justice Wright did just that. He cut in half the table amount of $682 to $341 per month.

73. Camirand v. Beaulne, 1998 CarswellOnt 2216, [1998] O.J. No. 2163, 160 D.L.R. (4th) 749 (Ont. Gen. Div.), Aitken, J., May 15, 1998.

74. Ibid., at paragraphs 28 – 30.

75. Hughes v. McColl, [1998] O.J. No. 2627, 1998 CarswellOnt 2940, (Ont. Gen. Div.), Aitken J., June 17, 1998.

76. Smith v. Stebbings, [1997] O.J. No. 4605 (Ont. Gen. Div.), Aitken, J., July 22, 1997.

77. In yet another decision by this same judge [Hughes v. Bourdon, [1997] O.J. No. 4263 (Ont. Gen. Div.), Aitken, J., August 5, 1997], we must give credit where credit is due. Her Honour did allow the undue hardship claim. The NCP father earned only $38,664.00 while the custodial mother earned $20,280 but her new spouse earned over $80,000. The NCP father had custody of two children from a previous relationship. What appears to be crucial to the result was that mother’s counsel conceded that the father would suffer undue hardship! The judge took the table amount of $335.00 per month and reduced it to $300.00! The mother had also sought the father’s pro rata contribution to the child care costs, calculated at $1,461 for past costs and ongoing costs of $215.00 monthly. The judge declined to award these amounts due to the father’s expenses for the two children with him. Given this judge’s other decisions, I cannot help but wonder what the result would have been had the mother’s counsel not conceded undue hardship.

78. Dergousoff v. Dergousoff, 1999 CarswellSask 231, 48 R.F.L. (4th) 1, [1999] 10 W.W.R. 633 (Sask. C.A.).

79. Wang v. Wang, 1998 CarswellBC 1809, 110 B.C.A.C. 302, 178 W.A.C. 302, 164 D.L.R. (4th) 146, 39 R.F.L. (4th) 426, 58 B.C.L.R. (3d) 159, [1999] 4 W.W.R. 752 (B.C.C.A.).

80. Justice Aitken in Gervais v. Tongue, 2000 CarswellOnt 461 (Ont. S.C.J.).

81. Sherman v. Sherman (1999), 45 R.F.L. (4th) 424, 44 O.R. (3d) 411 (Ont. C.A.).

82. FamilyPro Family Law Newsletter, 2000-20, May 16, 2000.

83. The Child Support Guidelines are designed to assume that the NCP has no direct expenditures on the children. See: Formula for the Table Amounts Contained in the Federal Child Support Guidelines: A Technical Report, Research Report CSR-1991-1E, Department of Justice, December 1997, particularly at page 2.

84. Roebuck v. Roebuck (1983), 26 Alta. L.R. (2d) 289, 34 R.F.L. (2d) 277, [1983] 5 W.W.R. 385, 45 A.R. 180, 148 D.L.R. (3d) 131 (Alta C.A.). Paragraph number references in the text relate to the paragraph numbers assigned by Carswell.

85. Bendle v. Bendle (1985), 48 R.F.L. (2d) 120 at 121(Ont. Prov. Ct, Fam. Div.).

86. Id. at 130.

87. Tyabji v. Sandana (1994), 2 R.F.L. (4th) 265, 112 D.L.R. (4th) 641 (B.C.S.C.) [at page 270, para 11 R.F.L.].

88. L.(V.A.) v. L.(J.F.), 1994 CarswellOnt 2169 (Ont. Gen. Div.). Cf. Dumouchel v. Dumouchel, 1995 CarswellOnt 2059 (Ont. Gen. Div.) at para 11.

89. Robinson v. Filyk (1996), 28 B.C.L.R. (3d) 21, 1996 CarswellBC 2664, 84 B.C.A.C. 290, 137 W.A.C. 290 (B.C.C.A.) at para 22 (CarswellBC). This case was cited favourably in Mbaruk v. Mbaruk (1997), 27 R.F.L. (4th) 146, 1997 CarswellBC 362 (B.C.S.C.).

90. MacCabe v. Westlock Roman Catholic Separate School District No. 110 (1998), 226 A.R. 1, [1999] 8 W.W.R. 1, 69 Alta.L.R.(3d) 1(Alta Q.B.); stay pending appeal granted upon conditions: (1999), 243 A.R. 280, [1999] 10 W.W.R. 461, 70 Alta.L.R. (3d) 1(Alta Q.B.)

91. Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577, 164 D.L.R. (4th) 325, 112 O.A.C. 188 (Ont. C.A.).

92. R. v. Ewanchuk, [1999] 1 S.C.R. 330, (1999), 169 D.L.R. (4th) 193, 235 N.R. 323, [1999] 6 W.W.R. 333, 131 C.C.C. (3d) 481, 232 A.R. 1, 22 C.R. (5th) 1 (S.C.C.).

93. In R. v. A.G., [2000] S.C.J. No. 18 (S.C.C.), Justice L’Heureux-Dubé stated: “This Court has repeatedly held that myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts’ truth-finding function. (See: R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 604 and 630, per McLachlin J., and at p. 651, per L’Heureux-Dubé J. dissenting in part; R. v. Osolin, [1993] 4 S.C.R. 595, at p. 670, per Cory J.; R. v. Esau, [1997] 2 S.C.R. 777, at para. 82, per McLachlin J.; R. v. S.(R.D.), [1997] 3 S.C.R. 484, at para. 29, per L’Heureux-Dubé and McLachlin JJ.; R. v.Ewanchuk, [1999] 1 S.C.R. 330, at paras. 91-99, per L’Heureux-Dubé J.; R. v. W.(G.), [1999] 3 S.C.R. 597, at para. 29, per L’Heureux-Dubé J.).

Study: Shared residence: Most children feel it important to have both parents involved in their lives.

Leeds University Study on children and co-parenting (2000)

New Childhoods: children and co-parenting after divorce

esrc_newc_logo.jpgUK E•S•R•C ECONOMIC & SOCIAL RESEARCH COUNCIL; An ESRCesrc-logo.png Research Programme on Children 5-16: Growing into the 21st Century; Research Briefing Number 7: The meaning of co-parenting after divorce; University of Leeds; Department of Sociology and Social Policy; Centre for Research on Family, Kinship & Childhood; Professor Carol Smart, Dr Amanda Wade, MARCH 2000

The question of how to raise children after divorce is becoming increasingly important as the numbers of children affected by divorce increases. There are indications that more parents want to be equally involved in raising their children after separation and this ethos is positively encouraged by the Children Act. Yet we know little about how children themselves experience being ‘shared’ across households: whether this is a positive experience, or whether it brings new dilemmas. This study interviewed 65 children, aged between 4–17 years, to discover what post-divorce family life was like for them when both parents continued to play a major role in their lives.

• Most of the children in the study felt that it is important to them to have both parents involved in their lives.

• For children who had moved between households from an early age, moving back and forth is simply routine. However, some children experienced emotional and practical difficulties at some stage.

• Difficulties can arise where parents are hostile to one another and where children are moving between ‘war zones’.

• Children are very keen to treat their parents equally and to ensure that they both have a ‘fair share’ but sometimes this makes it difficult for them to have time with friends.

• Children can see many benefits from the arrangement, including having ‘two of everything’. For some, these benefits mitigate the experience of having no settled home.

• Children want to be involved in decision-making about family life, although they do not want to be forced to choose between parents.

• The children who are least happy are those who feel that they cannot talk to their parents about the arrangements and who have no influence on how their time is parcelled out.

The Children Act encourages separating parents to think in terms of ‘shared’ parenting on divorce or separation in order that children can benefit from having the involvement of both parents in their lives. However, the legislation did not stipulate that shared parenting meant that children should divide their time and physical presence equally between their parents’ households.

While this is still rare it is nonetheless becoming a more common practice as parents strive to overcome the problem of ‘access dads’ or the detachment from parenting caused by living apart from children. This study therefore looked expressly for parents who were sharing the care of their children on a 50:50 basis (although sometimes this was more like a 60:40 basis because of the practicalities of shared care).

Ordinary families
The majority of the 65 children interviewed found co-parenting after divorce was ‘normal’ once they had got over the initial disruptions.

Anna (16): I’m just so used to it I can hardly imagine it any other way. I can’t imagine it any other way. I mean, there’s a good side and a bad side to it. As there is with everything. I’m just used to it. And I get on with my life. I quite enjoy it!

Indeed, some children thought that it was preferable to living in one household:

Rosie (9): It must be a bit boring for children who don’t have separated parents. Well, obviously, unless their parents are separating. Because then it’s obviously a bit confusing and a bit scary. But I mean, go to school, go home, just do whatever you do and then it’s the same every day. Whereas with me, I get to go to a different place half the week.

Typical problems
Although the children accommodated to these new arrangements and even flourished under them, they could still encounter problems. These problems could evolve as children grew older and wanted to spend time with friends rather than parents. Or they could arise when one parent moved further away, re-partnered, or had further children. For some children there was a particular problem associated with ‘transitions’ from one household to another. These could be practical such as having to pack a suitcase and/or school books every week. Or they could be emotional as they had to detach from one parent and re-bond with the other.

For others, especially very young children, a week was simply too long to be away from a parent and the switch around time had to be reduced.

Lisa (8): I thought I might miss [my mum and dad] terribly and I wouldn’t want them to go and I still don’t want them to go. The boys aren’t that bothered, they say ‘OK, bye’ but I still make a big fuss about it. … [If I miss my mum or dad] I just try to get on with something nice. But it never works really because you miss the parent and you can’t really stop missing them until you see them again.

Many of the children spoke of how they kept forgetting where their books were or how they needed to pop back to the other house to fetch something. This was not a problem where their parents lived close by, but for some it was more problematical. It was particularly difficult where some parents refused to allow children to take things purchased by that parent to the other parent’s house. Some items were too expensive to have multiple copies of, for example home computers which could be very important to some children. This meant that one household could become less attractive than the other.

However, it was much more likely to be how the parents treated the children which made one home more attractive than another. Some fathers were reported to be poor home makers (one girl for example having great difficulty using her father’s lavatory because it was so dirty). Children also found it difficult to move between hostile parents.

Matt (14): They’d fight over every day. They argue over like, whoever had had like one long day or something. It’s just relentless. I wish they would stop it I suppose.

Children’s moral reasoning on post-divorce family life
This study set out to hear what children themselves had to say about family life after divorce and how they thought everyday problems and issues could be managed. The study was not about the harms of divorce or the extent to which children might be damaged.

Rather than speculating on what children’s experiences might mean for them when they became adults, we were more concerned about what their experiences meant to them in the present, as children. This shift of emphasis suggests that we need to look more closely at childhood itself rather than valuing childhood simply as a training ground for the supposedly more important life stage known as adulthood. We therefore explored the extent to which children were active ‘moral agents’ in family life. We uncovered a wealth of information about the extent to which children seek to be fair to their parents and the extent to which they care for their parents. Children also said they wanted to be treated more as members of the family, rather than as packages to be passed around only to suit the lives of the adults.

We identified 3 forms of moral reasoning:

a) An ethic of fairness
The children were very concerned to treat their parents equally and to ensure that they had equal shares of them.

Q: Is there anything that you might like to change?
Rosie (9): Yes. For there to be eight days in the week. That’s the only thing.

Q: What difference would that make?
Rosie: Four days with both people.

b) An ethic of care
We found that the children could ‘parent’ their parents in that they saw them as individuals with needs who benefited from time apart from them to follow their own interests or to have other relationships.

Beth (14): It works for my mum ’cos she’s got time with Ian [mother’s boyfriend], where they can have fish and stuff, ’cos I hate the smell of fish, and it gives her a break from like worrying about me all the time.

But children also wanted their parents to exercise these sensibilities in relation to each other and in relation to themselves.

Tom B (11): I think it’s because even though mum and dad don’t love each other they still, they’re still very kind to each other and they just get on really well, even when we swap over. [emphasis added]

c) An ethic of respect
Although we found the children could be very attentive to the needs of their parents, we also found that they wanted to be treated with respect when it came to important decisions about family matters. We used a range of vignettes with the children that reflected typical dilemmas facing children of divorce parents in order to see how they would resolve the problems. The majority of the children, even those of eight or nine, felt that all children should be able to express a view and that this view should be respected – even if it was not treated as decisive.

Mark (15): I think he should have an opinion, I don’t think he should necessarily decide, he should get a say in it, he shouldn’t just be left out, I mean it’s his life as well, he shouldn’t be stuck with someone he didn’t want to be with.

Policy implications
In the area of family policy there are currently discussions over the extent to which children should be involved in the divorce process, how much information they should be given, and the ways in which their wishes should be ascertained in the event of conflict between parents. The children in this study thought it would be most unfair to expect children to choose between parents but they also felt that children were members of families too and that there should be ways of involving them in discussions, rather than just telling them what the new arrangements were going to be.

Jake (11): I think there should be some kind of agreement between him and his parents as to what should happen, rather than him just deciding who he wants to live with. I think the people who are involved should get to decide, not by themselves, but by helping each other to reach some kind of agreement as to what would be best.

The children recognised that they were not in possession of the same knowledge as their parents but they wanted to be involved and to have a say. They also wanted the opportunity to discuss practicalities. For example, for many children the problems of transitions between households were solved by the expedient of having neutral time in between the parents, for example a day at school rather than changing over at a weekend.

The children had lots of innovative ideas about how to solve typical problems because they had experienced them, whilst their parents had not.

Conclusions

Hope (14): My family is different from other people’s but I don’t mind that because who says what a family should be like?

Although divorce and parental separation causes disruption and problems for children, this study suggests that there are reasons to be optimistic about how children can rise to the demands of post-divorce family life, particularly if they are in a position to participate in how their new lives are run.

About the study
The research was undertaken by Carol Smart, Amanda Wade and Bren Neale at the Centre for Research on Family, Kinship and Childhood at the University of Leeds. The project was a qualitative, interview based study with 65 children aged 4 – 17 years, although most children were between 7 and 15. We used a conversational interview method and included the use of vignettes activity sheets and drawings in the course of the interviews, all of which were recorded with the children’s permission. We found our sample of children through contacts with parents in the workplace, in community based projects, and through Family Court Welfare and Family Mediation Services. Often children themselves helped to recruit more contacts. We were able to recruit a diverse population through the method of ‘purposive’ sampling which ensured that the children we interviewed represented a wide range of life chances and life styles.

Further information
Further information about the project can be obtained from:

Professor Carol Smart or Dr Amanda Wade
Centre for Research on Family, Kinship & Childhood,
Department of Sociology and Social Policy
University of Leeds • Leeds LS2 9JT
tel: 0113 233 4431 • e-mail: c.c.smart@leeds.ac.uk or a.e.wade@leeds.ac.uk

The research reported in this Briefing is part of the Economic and Social Research Council’s Children 5-16 Research Programme, which consists of twenty-two linked research projects looking at different aspects of children’s lives in contemporary society. The central theme of the Programme is to look at children as ‘social actors’ – who make an active contribution to their families and communities and to society.

For further information, including other briefings in this series, contact the Programme Office at the address below.

Children 5-16 Research Programme
Programme Director – Professor Alan Prout
Department of Applied Social Sciences • University of Stirling • Stirling • FK9 4LA

For Briefing enquiries contact Sue Hodgson:
tel/fax: 01482 355531 • email: S.Hodgson@cas.hull.ac.uk
www.hull.ac.uk/children5to16programme/

Editorial Consultant: Jane Brotchie