She then launched into a particularly vicious personal attack on Alberta Court of Appeal Justice McClung. C.A. Richard A. Warshak. In our democratic system, do not citizens have the right to publicly comment on public pronouncements made by non elected officials, by judges? ” Treat all court staff, litigants, witnesses and 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. Remain reasonable and calm. All rights reserved. The law requires the court to prioritise ‘the need to protect the rights of children and to promote their welfare’. The journal provides comprehensive coverage of family court practice, theory, research, and legal opinion. Each time she asked for attorney’s fees, the court denied them, until finally she was forced to give up and accept an unfair settlement. Gender Discrimination in Ontario Family Courts: #1 public policy failure in Canada today It is really too bad that in a progressive society with a Charter of Rights and Freedoms - the envy of the world - that grave injustices frequently occur to parents and children. It was added in the 1985 amendments and is popularly known as the “friendly parent” provision. The plain fact of the matter is this – in order for a man to succeed in maintaining a decent relationship with his kids (and by decent I mean in terms of time with the kids and even some responsibility for major issues affecting the lives of the children), he has to be what I call, “super dad”. (3d) 436, 9 F.L.R.R. Had time permitted, I would have liked to have discussed in more detail the historical development of gender bias in law and society. One level headed jurist [Justice Cecelia Johnstone of the Alberta Queen’s Bench, in MacCabe v. Westlock Roman Catholic Separate School District No. Years ago, mothers were expected to do one thing: be mothers. (2d) 18, 49 D.L.R. While there is some residual bias within the black letter statutes themselves, I can say with some degree of confidence that the vast majority of the laws in Canada in 1999 are worded in gender neutral terms. The wife paid full retail value for the husband’s share in the matrimonial home. He had become unemployed. Mom applied to court for custody and dad sought to increase his two weekly afternoon visits. It is only one factor to be considered with all the circumstances.”, “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. “No empirical evidence supports the distinction between primary and secondary caretaker after age five, as children’s greatly increased social, cognitive, and emotional maturity creates changes in the meaning of attachments and parent-child relationships to the child.” (Emphasis added.) Gender bias was not born in the court system. [Glynnis Walker: Solomon’s Children – Exploding the Myths of Divorce, New York: Arbor House, 1986]. What is “Gender Bias”? No wonder that the Fredericton lawyers jumped to the defence of the their Family Court judge! The intimidation problem is certainly not restricted to criminal law. The study A study was published in the European Journal of Social Psychology that examined the role of gender stereotypes in child custody decisions. There was no spousal support. 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? [Shirley M.H. We will be talking about gender stereotypes. Such stereotypical assumptions find their roots in many cultures, including our own. 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 before the court through a judicial prism of favouritism to one gender over the other where such favouritism is based on prejudice, stereotyping, distortion and irrational preference. 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). 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. Depending on the judge or the assessor, perhaps there is something to be side for bringing forward some of the various studies that cast doubt on widely held stereotypes and misconceptions. That court recently had occasion to review a trial judge’s award of $120,000.00 to an autoworker – supervisor for wrongful dismissal [Bannister v. General Motors of Canada Ltd., (1998), 40 O.R. A sidenote: Even where one Canadian court acknowledged that the Weitzman work was flawed, it still accepted the same analysis: See Baker v. Baker (1996) 22 R.F.L. Her Honour states: “I cannot apply a flawed process which perpetuates a discriminatory practice.” Could such a sentiment … could such a noble and just sentiment be applied in child custody law? From custody and access issues to spousal support, we must ensure our system is unbiased and incorporates procedural fairness concerning gender roles. The court system must examine its role in continuing and contributing to gender bias, and it must work to correct the problems that exist. 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?”. I have had the worst look from a women judge as she entered the court room, like she already hated the fact that I even dare try for my children. The Effects of Gender In the Federal Courts: The Final Report of the Ninth Circuit Gender Bias Task Force , 67 S. Cal. Once lawyers fail to meet the needs of a significant portion of their clientele, then it is high time that someone spoke out on the needs of those who are often not adequately serviced by the legal profession. Eventually, Weitzman herself acknowledged her study was erroneous. He was turfed from his home by the police enforcing an ex-parte order. All I want is what is fair, that is all any good father wants. Gender Bias in the Family Courts of Canada: FACT OR FANTASY? [Id.]. For example, in my Child Support Guidelines articles [see my web site as well as Gene C. Colman: Guidelines’ Undue Hardship Produces Conflicting Decisions, Money & Family Law, Vol. I would like to see a little more objectivity from my colleagues at the bar. I call upon all those involved in our legal system to meet the challenge. I particularly agree with Greenspan when he notes that “feminist influence has amounted to intimidation”. 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. There was an excellent article by Donna Laframboise in the National Post on January 30, 1999. 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. 35, 1997, p. 133] Fifty-three percent of the non-custodial fathers claimed their ex-wives had refused to let them see their children. ): Moge (1992), 43 R.F.L. 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? © 2020 by Gene C. Colman Family Law Centre. 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. How can it be that a women can cry abuse and it is so, but when a man has proof of a women actually doing it, that there is never enough proof. So under Australian law, there should not be a family court bias against Fathers in Australia. Like our own Child Support Guidelines, this research also fails to consider the non-custodial father’s spending on the children. Your gender should not cause you to suffer discrimination when assessing damages for loss of future income. 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. Ideology and Dysfunction in Family Law – How Courts Disenfranchise Fathers. Reference was also made to various other comments by Justice McClung that provoked harsh criticism from Justice L’Heureux-Dubé. She described three cases where assessors had relied on false information, faulty assumptions and in one case it was clear that the assessor proceeded from the assumption that children normally should be with their mother. Make no mistake please about what I am saying. Critical factors such as marital stability, family size and sibling gender, labor “Fathers who have sole custody echo the complaints of mothers with sole custody. Ct) Philp. Many witnesses pored out their hearts to the Special Joint Committee. You are a man and you cannot possibly succeed. I announced that I was doing a talk and some legal writing on gender bias and I invited input from those who had felt that they had experienced gender bias in our family courts. At Gene C. Colman Family Law Centre, our legal team is determined to hold all participants responsible for a fair process that is founded by examining evidence and applying the law. Dan Couvrette: My name is Dan Couvrette.I’m the CEO of Divorce Magazine and Family Lawyer Magazine, And today I’m meeting with Cathy Myers, who is the editor of She has also been a … In this case, the husband had relieved himself of the mortgage payments, gotten full value for his share in the home, and was paying drastically inadequate child support. In earlier times, it was assumed that men, by nature, are better suited to protect and provide for children. If the other side is aggressive in court, don’t copy them. GENDER BIAS IN CHILD CUSTODY DECISIONS. Since those presumptions are frequently held against fathers, men must spend more time, money, and effort just to try to get to a level playing field in a family law courtroom. I tried to recall those situations where the man improved his economic position post separation and divorce to the woman’s detriment. We only hear about so-called “women’s issues” and how we do not need legislative reform, how access denial is not a problem, and on and on. No. I should emphasize that my firm belief is that the very large majority of judges in Canada have no intention to discriminate upon grounds of gender. Let us not forget the often sordid role of custody-access assessors. Everyone should be treated equally in the judicial system, but many men believe that the family courts tend to favor females. 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)]. The Guidelines fail to recognize the parenting expenditures of the non-custodial parent, who is usually the man. In a 1997 study “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.” However, the study is silent on what percentage of custodial fathers do the same. Is it a “fact” or is it a “fantasy” dreamed up by frustrated male litigants and their lawyers? I agree! 129, there have been profound changes in women’s labour force participation. The Ontario Court of Justice has jurisdiction over child protection, adoption, custody, access, child support, and spousal support. It is my responsibility as an observer and commentator on the Canadian legal scene to raise my voice loud and clear. I don’t need to read your affidavit. The husband earned approximately $65,000.00; the wife earned less than $20,000.00. Being unemployed, dad had the time, so why not? 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. The trial court judge in the In re JRD case stated on the record that the SPO is “…the standard schedule that every other dad gets.” (emphasis added). From the Law Society of BC, in 1992: On 27 July 1992, the Law Society received the report of the Gender Bias Committee entitled Gender Equality in the Justice System. Judicial Misconduct – Bias: Ethnicity, Nationality, Race, Gender & Sexual Orientation 3 In addition to other misconduct, in two separate civil matters, the judge made remarks during court proceedings that disparaged the litigants and counsel. Despite clearly required to by the California Family Code, the court offered her absolutely no help. Family of Tuskegee Syphilis Study participant say they’ll take COVID-19 vaccine. [Id. I will demonstrate this evening, through just a few examples, how the law of Canada is rising to rid itself of gender bias in some areas, while in another area, in family law, men are discriminated against, vilified and simply put down for no other reason than the fact that they are men. The New Collins Thesaurus [1984] gives the following synonyms for “bias”: ” n. 1. I speak only for myself. Findings show that when given this opportunity and encouragement, fathers are just as sensitive and responsive to infants as mothers are. (3d) 577, 164 D.L.R. When my journalist’s alarms started sounding at the utterance of the word “policy”, I asked her, very softly, to tell me where that policy could be found. [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. (Faludi, Susan: “Backlash: The Undeclared War Against American Women”, Anchor Books, Doubleday, 1991.) But as gender roles have evolved in society, more and more mothers are working instead of staying home. This recent study done in Brazoria appears to confirm this father bias. The judge then goes on to quote an author who summarizes the various myths of rape (although this case was not a rape case). Most dads do pay their child support, in full. … Feminists have entrenched their ideology in the Supreme Court of Canada and have put all contrary views beyond the pale. Parents who are in a custody dispute did not start off that way. In a workplace discrimination case involving family caregiving, the gender of the plaintiff also affected judges more than laypeople. Purpose Another theory behind some of the gender bias we’re seeing in the court system relates to a mother’s expectations. I’ve had some women tell me they don’t care how the assessment turns out because they are going to get custody of the children anyway “because they always give custody to the woman”. Common sense tells us that everyone’s standard of living suffers. Is Gender Bias Real? The courts have endeavoured to alleviate this discrimination with the use of male or female wage tables modified by either negative or positive contingencies. Family Court Review is the leading interdisciplinary academic and research journal for family law professionals. Richard A. Warshak. As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. I have found that a number of Provincial Division judges grant such orders without there being any notice to the father. Solid physical evidence of the physical abuse (let alone emotional abuse) against the children by the mother is ignored by child welfare authorities who see dad’s complaints as simply part of his matrimonial case. 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. The National Judicial Education Program's (NJEP) judicial education programs were the catalyst for a series of task forces established by state chief justices, state supreme courts and federal circuit councils to examine gender bias in their own court systems and recommend reforms. What can we do to ameliorate the injustice? While family laws are gender neutral, there’s no doubt that judges and lawyers interpret them based on certain beliefs. [An Act to amend the Law relating to the Custody of Infants, 2 & 3 Vict. Dad was told by many, including judges, that the abduction by mom would play no part in a determination of custody! Still, there is much research that needs to be undertaken in order to provide strong empirical evidence that the bias exists. A Polish immigrant with limited English language skills went to Fredericton’s Family Court to get more contact with his five year old daughter. The courts have judicially recognized in tort law the historical discriminatory wage practices between males and females. Gender bias does not mean that a man is faced with an order he does not like or does not think is fair. Is there a gender bias problem in Canada’s Family Courts? But these cases are the exception – not the rule. It does not end there! The courts must see who is the better parent, for the children, and not just because that parent is a woman. Public education is much more important. Injustice, no matter where it is found, should not be permitted to plague our legal system. T.H.B., unreported, digested at [1999] O.J. Each of the gender stereotypes trumpeted by the Alberta justice were demolished by Justice L’Heureux-Dubé. Angle, cross, diagonal line, slant ~ v. 3. That is the economic reality of separation and divorce that my twenty years experience demonstrates. 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.]. Justice Goodearle begins the most important part of his joint custody decision by stating [pp. Traditionally after a divorce, a man financially supported his former wife, but that is changing. Let us start with a story – a true story as I understand it. Are you aware of how the media reinforces a bias against men by perpetuating certain negative images and stereotypes of men? The Ontario Court of Justice has jurisdiction over child protection, adoption, custody, access, child support, and spousal support. Bent, bigotry, favouritism, inclination, intolerance, leaning, narrow-mindedness, one-sidedness, partiality, penchant, predilection, predisposition, prejudice, proclivity, proneness, propensity, tendency, turn, unfairness. But should we expect any more balance from assessors than we currently do from judges and lawyers? (3) 140 (Ont. 5 October 1998, Johnstone, J.] Family court judges are often poorly trained in recognizing signs of abuse and an over-reliance on court evaluators, inherent gender bias and allowing PAS into the courts has contributed to this escalating problem. Great Britain and Canada were a little slower to grant women more rights in this area. Liberal M.P. Weitzman just has to be wrong! The prime example where the model applies is one case that I recently took on: The husband and wife went to the same lawyer. 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. She had no skills and no job prospects. A latent influence that disturbs an analysis.”. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women. . All we want is for judges, assessors and lawyers to deal with family law issues absent any prejudice, bias or ill-conceived presumptions about what “men” can do or cannot do. (2d) 119]. [Lenore Weitzman: The Divorce Revolution, 1985] This study has been cited favourably in numerous American cases as well as in a number of Canadian cases such as Keast (1986), 1 R.F.L. 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