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.” [Warshak, id.]. to the effect that of the 900 complaints received which involved custody – access cases, 600 were shown to be unfounded or unsubstantiated. It is time to let the Canadian public know that men facing separation and divorce are not being dealt with fairly. For many men, the prospect has become so fearsome they are turning their backs on getting married in the first place — and avoiding what they see as the bear trap of long-term commitment to women, kids, and family. 1053 (Alta Q.B.) When dad took court action, backed by medical experts and private investigators’ pictures of mom and her boyfriend smoking in the car with the boy, the female judge decided that the application was nothing more than the father trying to drive a wedge between mom and the boy and then ordered dad to pay $750.00 in costs. The legal issue in the case was whether the complainant had consented, as consent is understood by the Criminal Code. Where the case becomes interesting for those concerned with gender bias and stereotyping is the additional judgment proffered by Madam Justice L’Heureux-Dubé. Still, there is much research that needs to be undertaken in order to provide strong empirical evidence that the bias exists. The intimidation problem is certainly not restricted to criminal law. Child Custody Gender Bias in the Family Court System. A prime example of such legislation would be the Child Support Guidelines. The presumption that women are more fit for parenting, or that they require more financial support than men is simply unfair and unjust. While one could argue that there should be no such thing as spousal support and that it should be the responsibility of the state to support the economically disadvantaged spouse, most would admit that spousal support is necessary and proper in these circumstances. 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. NJEP State Task Forces. 198 (Nfld U.F.C. Decided in December 1986, the case is the family law parallel to the above personal injury damages case. Is there gender bias in family court? With over 40 years of family law advocacy, that started in law school, as well as comprehensive knowledge and experience in the area of shared equal parenting rights, Gene C. Colman vigorously fights against gender bias in divorce and separation proceedings. Nearly 20 years later, many of the now self-represented litigants make these same complaints. This complaint has as much chance of succeeding before the Judicial Council as does … [well you can fill that in]. As soon as his custody trial was over, he was arrested yet again and that charge was thrown out too. The judge then goes on to quote an author who summarizes the various myths of rape (although this case was not a rape case). Many studies show that children show no particular preference for or problem with either parent staying or leaving. I cannot apply a flawed process which perpetuates a discriminatory practice. Eng. The plaintiff (GM supervisor) had sexually harassed a number of his female workers and was, I would suggest, quite properly sacked. addressing bias in the courts. bucked precedent in a personal injury action and held that a determination of a school girl’s future lost income claim should not be prejudiced by using statistical yardsticks that reinforced lower wages for women versus men. At worst, – well I do not want to say. Many studies “point out gender bias in the system at large against women,” she said yesterday. Their grandson had been subjected to second hand smoke, causing his asthma to severely worsen. The problem here was unique to a situation where a lawyer participated in what basically amounted to perpetrating a fraud upon the wife. They are all part of the problem. All of this makes eminently good sense. You were always accessible during the preparation of my case and prior to court appearances. Let my talk this evening serve as a preliminary introduction. I’m certainly not going to order Family Responsibility to refrain from suspending your driver’s license, buster! That father states: The lies that women get away with about Fathers must stop! Any man that has gone through the system will laugh at the suggestion that there is no gender bias. To examine gender bias in the court, we first need to understand how gender roles play out in a family unit and what happens when a custody dispute disrupts this dynamic. The Effects of Gender In the Federal Courts: The Final Report of the Ninth Circuit Gender Bias Task Force , 67 S. Cal. A letter from the lawyers to the local paper stated: Ms. Jarratt’s comments are troublesome for two reasons: (1) There is no factual basis offered for the grossly generalized statements made; (2) The tactic of using a complaint by another individual as an opportunity to publicly and personally malign a judge in the language used is distasteful, particularly when the judge cannot respond to such allegations. Abuse allegations are very effective ways to have a husband removed and a non-contact with the children (or restraining order) put in place. How many men have been looked at by judges and by lawyers as simply ‘another man’ bellyaching about “access”. I do, however, intend to speak frankly and from the heart while at the same time I hope that I do still maintain that degree of balance and fairness to temper or modify my commentary so that it reflects an honest pursuit of truth, academic integrity and even handed legal analysis. For years I accepted the Weitzman study as ‘truth’. This wife had no independent means of support. I received stories from across North America. … I heard from southwestern Ontario, from a dad whose family had been literally ripped apart because mom knew that the Guidelines would net her more money if she could just get that 21 year old son who had been living with his girlfriend back into her house and back into school. Court cases must be decided upon the real evidence and not on myths. ” A judge's unbiased behavior and insistence on the same from others in the courtroom is the most effective way of eliminating gender-biased behavior. I particularly agree with Greenspan when he notes that “feminist influence has amounted to intimidation”. The judge relied on the author’s reporting of the relevant social science research. [Source for parts of this summary: Book Review by Cathy Young in The Detroit News, October 21, 1998, as forwarded by Nicholas J. Kovats, Freedom for Kids], The U.S. Census Bureau has confirmed in a study that Weitzman’s 73% number was wrong and inconsistent with her own information. Some remarks appeared to advocate We all know that from our everyday experience. Gender Bias in the Family Courts of Canada: FACT OR FANTASY? I know this: Many of my colleagues openly admit to telling their male clients, “It is not a good time to be a man in the courts of Canada these days.” We say this because we know from admittedly subjective experience that to succeed as a man in court, it is much more difficult than if you are a woman. She received a sentence of only two and one half years. I fully recognize that by my speaking out on this topic that I might incur the disapproval of those who may view my remarks as “politically incorrect” and not fully in step with my colleagues in the Canadian Bar Association Family Law Section and elsewhere. The Ontario Court of Justice does not hear divorce or property matters arising from a family breakdown. This paper can be downloaded from his web site: (2d) 18, 49 D.L.R. Where fathers actively seek custody, they receive primary residency in less than one out of three cases (29%), and joint physical residency in less than half (46%). Tonight I will attempt to provide some small degree of perspective to this most pressing injustice. But to imply that the belief that one is abused somehow might justify murder or a lesser sentence, certainly smacks of an invitation to all women who are pursuing a custody claim to claim abuse. Justice Myrna Athey was reported, in the local papers, to have made the following comment on the record: “Many fathers don’t even see their children on Wednesdays, so why should this five-year-old be spending Tuesdays and Thursdays every week with her father?”. However, as someone who is particularly concerned with gender bias within the family court system, I see in the judgments of L’Heureux-Dubé and MacLaughlin great opportunity. 23-24]: Section 16. The Ontario Court of Appeal has also struck a great blow against gender bias’s first cousin, gender stereotyping. [Joan B. Kelly: The Determination of Child Custody, Children and Divorce, Vol. Our lawyers explain that just because women are considered culturally better at parenting than men does not give the court a legal right to award more child custody rights to the mother unless there are facts proving that the child’s best interests would be met if he or she remains to live with the mother. The Guidelines fail to recognize the parenting expenditures of the non-custodial parent, who is usually the man. … Feminists have entrenched their ideology in the Supreme Court of Canada and have put all contrary views beyond the pale. 157], “The major finding of the study was that across a variety of assessments of psychological well-being (self-esteem, anxiety, depression, problem behaviors), children (especially boys) did significantly better in the custody of their fathers. The supervisor had argued that the GM plant is a rough place where rough language and sexually suggestive banter is common place. It can be argued that, when deciding custody and visitation, a court gives the best interests of the child the highest priority and not gender (Levin ; … But the source of the bias is not in the courts – it’s in the marriage. Yes, gender bias is a reality in Canada’s courts – and especially in the family courts. H.C.); Linton (1988), 11 R.F.L. From custody and access issues to spousal support, we must ensure our system is unbiased and incorporates procedural fairness concerning gender roles. 2. “Fathers who have sole custody echo the complaints of mothers with sole custody. Reference was also made to various other comments by Justice McClung that provoked harsh criticism from Justice L’Heureux-Dubé. She criticized McClung for his references to the complainant’s manner of dress and her living arrangements with her boyfriend and others. What Justice Johnstone does in this case is this – she jetisons factually incorrect stereotypes with respect to women’s position in the modern day labour market. Contact Gene C. Colman for a customized legal strategy today. I suggest that when a citizen simply states, in his or her pristine innocence, and when a lawyer simply states in his or her not so pristine innocence, that ‘the emperor has no clothes’, then the communal reaction ought to be: “My dear, let us examine our previous views to see whether or not the emperor indeed has no clothes.”. Can a judge seriously maintain that Justice L’Heureux-Dubé’s admonitions with respect to gender stereotyping can apply only to women but not to men? (10) is new and of significant help in the case at bar. 745 and cited in Cynthia A. McNeely: Lagging Behind the Times: Parenthood, Custody and Gender Bias in the Family Court, 25 Florida State University Law Review 891 (Summer 1998)]. I am a front line worker. Myth: [with thanks to F.R.E.E., Fathers Rights Equality Exchange: Myth America – The Myth of the “Deadbeat Dad” at ] – Deadbeat dads stash money and assets in offshore investments and jet off to St. Moritz to ski the slopes with the new girlfriend, while mom and the kids languish at taxpayers’ expense. His wife had left with him with apparently no warning and had gone to live in a basement apartment. Or, how about this one? Tuesday, March 16, 1999 INTRODUCTION What is "Gender Bias"? I speak only for myself. Is it a “fact” or is it a “fantasy” dreamed up by frustrated male litigants and their lawyers? Irrational preference or prejudice.”. Justice Johnstone stated (I have added the emphasis): [para469] It is entirely inappropriate that any assessment I make continues to reflect historic wage inequities. Traditionally after a divorce, a man financially supported his former wife, but that is changing. If my words offend some of you, then please accept my apologies. I declined. The police and crown lawyers simply assumed that the allegations must be true and have laid many charges, some of which have been thrown out of court; many claim to have been wrongly convicted and unfortunately languish in jail to this day. I speak only for myself. A lawyer must properly interview a client and see if he has the requisite fact situation that would justify pursuing matters whether through patient negotiation or through court action. What is “Gender Bias”? Like our own Child Support Guidelines, this research also fails to consider the non-custodial father’s spending on the children. I would like to see a chair established at a prestigious law school to foster research into what might be called “men’s issues” but are really gender equality and “people” issues. The presumption that women are more fit for parenting, or that they require more financial support than men is simply unfair and unjust. Indeed, when we stereotype a group based upon preconceived notions, we tend to ignore the actual evidence staring us in the face. Legislation should not discriminate on gender grounds. Let me tell you, briefly, that false abuse allegations were hurled at him, even though he and the children were the ones who were beaten. 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. She had no skills and no job prospects. 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.” [Graeme Russell and Norma Radin: Increased Paternal Participation, Chapter 9 in Fatherhood and Family Policy edited by Michael E. Lamb and Abraham Sagi published by Lawrence Erlbaum Associates 1983, page. Mothers get primary residential custody 93.4% of the time in divorces. However, in the area of the family court, particularly child custody laws, change has been lacking and complicated. Communicating that to the court, where time is precious and the chance to talk is limited, is not easy – especially when the other side is presenting a different picture. The judges themselves are attacking stereotypical assumptions. Gender Bias in the Family Courts of Canada: Fact or Fantasy?Presentation to Fathers Are Capable Too ( F.A.C.T.) Breadcrumb Trail Links. Let us eradicate all stereotypes! The Code was amended in 1983 and in 1992 to eradicate reliance on those assumptions; they should not be permitted to resurface through stereotypes reflected in the reasons of the majority of the Court of Appeal. The emperor has no clothes! Our lawyers explain that just because women are considered culturally better at parenting than men does not give the court a legal right to award more child custody rights to the mother unless there are facts proving that the child’s best interests would be met if he or she remains to live with the mother. No. And this runs counter to our cultural prejudice, which consistently devalues the father’s contribution to his children’s psychological development … for the better part of this century, our society and it’s institutions have overlooked all but the father’s economic contribution to his children.” [Warshak, id. But that was not the worse of it. And, just to review Justice Johnstone’s precedent setting decision, if you are disabled from working, then calculation of your lost income must be measured using statistics that are not loaded against you solely because you are female. Family Court Review is the leading interdisciplinary academic and research journal for family law professionals. 110, unreported, digested at [1998] A.J. The response was gratifying, yet depressing. Did you know that British, Canadian and American law formerly gave custody pretty well automatically to fathers almost 100% of the time? Once judges legislate (and they do legislate, make no mistake about that) and once judges apply stereotypes riddled with gender biased attitudes, then they make themselves fair game to fair analysis, fair comment and fair criticism. Family law: Gender bias and spousal support in Canada On behalf of Gary Kirk of Kirk Montoute Dawson LLP posted in Family Law on Tuesday, August 29, 2017. He states: Subsection (4), and (10) of section 16 may well ordain the dawning of a new era in the sharing of child-raising responsibilities by divorcing parents. [Many of the sources referred to here have been culled from an excellent paper by Carey Linde: A Case for Fathers and Co-parenting. J., 4 January 1999 at paragraph 148]: “The rule that children of tender years belong with their mother has been considered by the courts as a rule of human sense or common sense rather than a rule of law. 188]. I tried to recall those situations where the man improved his economic position post separation and divorce to the woman’s detriment. Where a marriage breaks down for any reason and where certain statutory criteria are met, the Divorce Act mandates that the spouse in the economically superior position shall pay spousal support. It is the task of those who truly care, to take positive and resolute action in order to transform the heartfelt words from Edmonton into attitudinal change and therefore into enlightened, just public policy. What passes as common sense one day or what passes as scientific research findings the next day, may all be shown, on more rigorous examination, to be nothing more than expressions of gender stereotyping, prejudice and bias. We need research. 198, 23 A.P.R. Hi there, Firstly I would like to say this presents some interesting questions and solutions to family court proceedings that many go through and I am pleased that you are open to debate on this. The law requires the court to prioritise ‘the need to protect the rights of children and to promote their welfare’. T.H.B., unreported, digested at [1999] O.J. You are a man and you cannot possibly succeed. Being unemployed, dad had the time, so why not? Primary custody is a pivotal issue for parents involved in a divorce, and there is a common myth that a gender bias exists in the courts when primary custody is at issue in the case. 35, 1997, p. 133] Fifty-three percent of the non-custodial fathers claimed their ex-wives had refused to let them see their children. The Supreme Court Standing Committee on Fairness and Diversity was established to help advance the State Courts System’s efforts to eliminate bias from court operations that is based on race, gender, ethnicity, age, disability, financial status, or any characteristic that is without legal relevance. But should we expect any more balance from assessors than we currently do from judges and lawyers? Fathers in divorce get primary residential custody only 2.5% of the time. 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