Male victims of bias in family law?

In March of 2000, Darren White committed suicide shortly after being ordered to pay more support than he was earning on disability insurance. Mr. White was represented in court by a men's rights group representative. In the days and weeks following his death, numerous newspaper articles and internet postings held his unfortunate death up as an example of what they perceived as a court system gone awry, an example of gender bias against men having resulted in the ultimate casualty of the gender war.

Whether the decision itself was correct, whether it amounts to an example of judicial bias, and whether it, in fact, contributed to the tragedy of Darren White's death is up for debate. Is there really a gender bias against men in our family courts? Or are such ramblings simply the emotional rhetoric of a portion of society (men) who are being forced to hand over control of the family unit which they have traditionally held since before our father's father's time?

Lest you see the gender bias allegation as solely the opinion of a radical few, a certain member of our own Court of Appeal in Alberta suggested that he had concerns regarding the personal convictions of another Judge affecting judicial neutrality.

Justice McClung of the Alberta Court of Appeal, in response to a critique of his decision in a sexual assault case by Madame Justice L'Heureux-Dube of the Supreme Court of Canada, responded by a letter printed in the National Post suggesting that her decisions evidenced a personal conviction that hurt men. It should be noted that Justice McClung since apologized for those remarks, which could be fairly said to be intemperate. However, the fact that the statement was made at all suggests that at least one member of our highest court in the province questions the agenda of the highest court in the land on gender neutrality.

On searching Canadian Judgments in Quicklaw, we find 65 cases referring to gender bias against either sex, only a few of which actually refer to allegations of gender bias by the courts, and none of them finding any substance to any such allegation.

Is there a bias in our courts against men? What exactly is bias, from the point of view of the public generally, or more particularly from the point of view of the courts?

The Cambridge International Dictionary of English definition provides the following starting point:

bias (preference) a tendency to support or oppose a particular person or thing in an unfair way by allowing personal opinions to influence your judgment

As a general notion, then, we have to ask ourselves, does the public perceive that judges in our courts are supporting women in an unfair way by allowing their personal opinions to influence their judgments?

The courts have periodically dealt with allegations of bias, sometimes as regard to gender preference, and sometimes with regard to other issues. Madame Justice Veit of our Court of Queen's Bench in Alberta provided a good analysis of the legal test to establish bias on the part of a Judge or tribunal in L.M.B. v. I.J.B., 2000:

In S.(R.D.), the Supreme Court of Canada also approved the test found in Middelkamp for deciding if there is a reasonable apprehension of bias. Referring to that decision, and to the existing case law, Justice Cory said:

"This test has been adopted and applied for the past two decades. It contains a twofold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case ... Further, the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including `the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold".

This test has been described as having established a `high' threshold for a finding of perceived bias. In the case of Sorger, Justice Bastarache, declining to recuse himself from a case stated: `The test for apprehension of bias takes into account the presumption of impartiality. A real likelihood or probability of bias must be demonstrated.'

No case that I have been able to find has ever made a specific finding of gender bias on the part of a judge or the courts generally. However, our courts, in dealing with spousal support and sexual assault issues in particular, have on numerous occasions referred to institutional or systemic bias against women in the past requiring redress by our courts now.

The lack of any decision making a finding of bias on the part of a court or judge is not surprising when one considers the heavy onus on the party alleging bias, as referred to in the case quoted above. However, does that answer the question? Is all well because our courts suggest all is well?

The answer to this question appears somewhat ambiguous.

There is little, if any, empirical data to substantiate that the decisions of our courts work an inequity against men in general, with the exception that the vast majority of custody awards are in favour of women. However, even that imbalanced statistic does not at all substantiate that there is some gender bias at work. Traditionally, women have carried out the primary responsibility for caring and nurturing children in a relationship. Thus, having regard to traditional gender roles that are still predominant in society, it may well be expected and quite correct that women obtain custody more often than not.

Notwithstanding the lack of empirical data, however, there does appear to be a concern raised again and again, that there is a perception in family law of a systemic gender bias against men. This is so particularly in the context of decisions relating to custody and access to children. The recent Senate Report on the Special Joint Committee on Child Custody and Access reported on many interviews and submissions by litigants and lawyers suggesting the perception of a judicial bias against men. Unfortunately, the information contained in the report in this respect was almost entirely anecdotal, without statistical backup.

As a lawyer practicing family law for longer than I'd care to admit, I can say that I have had concerns of an uneven playing field when acting for men, and I have had these concerns raised even by some of my colleagues holding the strongest feminist attitudes.

Why is this? If I were to hazard an opinion, I would suggest that in the rush to remedy real and substantiated financial inequities to women resulting from divorce, we have contributed to the polarizing of the sexes and the alienation of men from the solution.

While our courts have finally recognized the complexities inherent in the financial fallout to women and children in a divorce, they have paid scant attention to the complexities inherent in the fall-out to men and their relationships with their children in a divorce -- a sort of double-whammy. If you are a man on the receiving end of these decisions, there is a suggestion that, first, you are demonized for your spouse's diminished financial status, and then second, your diminished parenting status is at the same time completely, or largely, ignored.

To illustrate, I would refer to the decision of our Supreme Court in Moge v. Moge, 1992. I suggest that this decision, delivered by Madame Justice L'Heureux-Dube, is one of the best, and at the same time, one of the worst family law decisions delivered by our highest Court.

Why is it the best?

In the Moge decision, our Supreme Court analyses in great detail, the complex and often ignored financial consequences suffered by women and children as a result of the breakdown of a marriage. The decision goes through a lengthy and enlightening exposition of the tangible and intangible financial difficulties suffered by women as a result of divorce, which have a tendency to continue sometimes long after. It then goes on to propose solutions to more fairly achieve an "equitable sharing of the economic consequences of marriage or marriage breakdown upon its dissolution."

Why is it the worst?

In its efforts to assist in creating the "equitable sharing" referred to above, the Court, in my opinion, goes too far in creating polarity between men and women. Rather than making gender neutral references to the stay-at-home parent or the non-working parent, the decision draws clear gender-specific lines between men and women, and makes it clear that the gender they are really helping are women.

The catch phrase referred to in that decision, the "feminization of poverty" makes it abundantly clear who is good and who is bad. And, to clarify, the Court reiterates, "On a societal level, divorce increases female and child poverty and creates an ever-widening gap between the economic well-being of divorced men, on the one hand, and their children and former wives on the other."

The implication is clear -- men are getting fat off of the poverty of their spouses and children. It is suggested that were the Court to make the same point in a more neutral fashion -- e.g., `Divorce has a tendency to hurt custodial parents and their children disproportionately to its effect on the non-custodial parent', it would be much less likely to result in the following:

Alienation of men, by making gender-specific comments blaming them as a gender for the difficulties of women and children;

Polarization of the sexes generally, again, by perpetuating a gender-war attitude in utilizing gender-specific descriptions where not necessary; and

Sending a message to lower courts, that, by implication of the foregoing, it is acceptable to treat men worse than women.

More troubling than pointing a finger at men, however, is the lack of understanding exhibited with regard to what men, if we are going to be gender-specific, endure themselves as a result of divorce.

In Moge, the Court remarks that women are restricted in their job choices by nature of their parental responsibilities, whereas "the other spouse encounters none of these impediments and is generally free to live virtually wherever he wants and work whenever he wants." (Note the use of he). The suggestion is clearly one of a stereotypical view of the father as uninvolved, unconcerned, and completely unaffected by his responsibilities as a parent, ignoring the reality that the standard custody regime today often has a father with upwards of 40% of the parenting responsibilities, coaching sports, and involved in school activities, even if he is not the primary caregiver.

The Court looks further at other, more intangible benefits of being a non-custodial parent, and states, "A single person can live in any part of the city, can frequently share accommodation with relatives or friends, can live in a high-rise downtown or a house in the suburbs, can do shift work, can devote spare time as well as normal work days to the development of a career, can attend night school, and in general can live as and where he or she finds convenient. A custodial parent, on the other hand, seldom finds friends or relatives who are anxious to share accommodation, must search long and carefully for accommodation suited to the needs of the young child, including play space, closeness to daycare, schools and recreational facilities." Again, clearly the Court alludes to the stereotype of hedonistic bachelor, unaffected in his lifestyle choices by his responsibility as a parent. The decision in Moge appears to ignore the reality of the involved and dedicated father, who, like the mother, must make choices in his residential situation conducive to the needs of his children. To suggest that a father, even exercising simple weekly contact with his children does not require accommodation appropriate to the needs of his children is at best an unfortunate stereotype, and, at worst, a signal to all fathers that the highest and most influential court in this country is out of touch with and unconcerned with their reality.

Our courts, perhaps unwittingly in their traditional role as arbiter between warring factions, have perpetuated the stereotype of litigation as a win-lose proposition, with victors and victims. Perhaps the time has come to make greater effort at creating solutions sensitive to the needs of men and women, fathers and mothers, equally, and making greater effort in avoiding gender-specific references and assumptions where they are not necessary.

Statistics compiled by the Department of Justice, in Selected Statistics on Canadian Families and Family Law: Second Edition prepared by the Research Unit Child Support Team, Department of Justice Canada (March, 2000) illustrate the potential for inclusive solutions:

"Among children living with their mother, and for whom child support payments were regular and on time, close to one-half (48 percent) visited their father on a weekly basis, while only 7 percent never saw him. In comparison, fathers who did not provide financially for their children on a regular basis had fewer contacts with them. Only 15 percent of children whose fathers had not provided child support payments in the last six months saw their fathers weekly and 28 percent never saw him. The regularity of payments appears strongly related to the likelihood of fathers maintaining frequent contact with their children, and the impact of this variable remains important even after controlling for the type of custody and child support arrangements, the type of union, the level of tension between parents, and the time elapsed since separation."

In other words, the more the father's role as a parent is encouraged, the more likely he is to comply with his obligations.

Is there gender bias against men? Whether the courts wish to acknowledge its actual existence or not is perhaps less important than the courts being willing to acknowledge its perception. Without taking these concerns seriously, the courts run the risk of being seen by half the population as lacking efficacy, which will only further contribute to difficulties in compliance with court directives and ongoing strife between spouses, hurting them and their children. If the courts take pains to be sensitive to both genders, hopefully that will result in greater potential for a win-win proposition for post-divorce families.