Canadian judges are very powerful. In fact, our constitution gives judges power over all branches of government. And, they take pride in rooting out perceived inequality pursuant to s. 15 of the Charter of Rights and Freedoms.
Ironically, though, the courts themselves are a bastion of widespread, systemic discrimination when it comes to one particular group of people: dads.
There have been tremendous societal changes in the realm of gender roles in recent history. Whereas 100 years ago women rarely held outside employment, this is now the norm.
Men’s roles have changed almost as dramatically. Fathers’ involvement with their children has been on the rise for a couple of generations. Whereas stay-at-home dads were unheard of 100 years ago, today they are not uncommon. Among dual-income families, fathers now undertake virtually the same number of hours of hands-on child care as mothers.
Yet judicial outcomes do not reflect these trends. The proportion of mothers obtaining primary physical custody of the children upon separation is virtually unchanged from Edwardian times. A recent analysis of the Central Divorce Registry by Paul Millar shows that mothers are 27 times as likely as fathers to obtain sole custody of the children.
Joint guardianship – the equal right to make decisions on behalf of the child – has become the norm in adjudicated custody disputes. But primary physical custody remains almost the exclusive preserve of mothers.
After an exhaustive analysis of the National Longitudinal Survey of Children and Youth, Millar shows that children from single-father homes fare no worse than, and in some respects better than, children from single-mother homes. He concludes that there is a “disconnect” between what judges purport to be doing – making decisions that are in the best interests of the child – and what actually plays out in the court room.
Judicial prejudice against fathers shows up in Millar’s analyses. Judges go to extreme lengths to rule in favour of mothers, often ignoring or twisting facts to achieve preconceived results. Nobody can read the inquiry into the death of Zachary Turner and not see the willful blindness of the legal system to the mother’s faults in that tragedy.
Family law has become so illogical that it is possible to find a precedent for nearly any proposition that favours the mother, even when it makes no sense. There are no principled decisions, unless you count the consistent finding that make fathers pay the costs of the separation and child care.
Even at the highest level, logic and consistency are elusive. The Supreme Court of Canada has ruled that mothers have a constitutional right to the custody over their children and fathers have no rights at all – only obligations. A father’s most important contribution is to pay child support.
In promulgating these travesties, judges are heavily influenced by the “social context training” they receive from the National Judicial Institute. Judges are instructed to accept “social facts,” such as the purported contribution of divorce to the feminization of poverty, that in fact have little relevance to individual custody questions.
The anti-male stereotypes in the minds of judges are exacerbated by the adversarial legal system which pits parents against each other instead of giving them incentives to cooperate in the best interests of the child. Judges don’t even ask the right question. Instead of trying to decipher who is the better parent, through the fog of prejudice-filtered litigation, judges should be asking, “How can we best maintain the child’s relationships with the significant people in his or her life?” All reputable social science shows that children are better off having maximal contact with both of their parents.
Fifteen years ago, a joint committee of Parliament, after a lengthy consultation process, recommended changing the divorce law to equal shared parenting. That recommendation is still favoured by a large majority of Canadians. It is long overdue.