Problems in Family Law Are More Than Just Gender

Lawyers agree on few things, but one of the issues that there appears to be consensus on is that the legal system is in crisis. The family law system is particularly strained, and complaints about family law go back decades.

I touched on this briefly in my recent column in National Magazine,

From 1997 to 1999, the Special Joint Committee on Child Custody and Access studied the impact of family law on children. The main complaint was that the process affected parents’ relationships with their children.

Litigants (sic) pointed to a presumed gender bias in the courts, unethical practices by lawyers, procedural flaws, credence given to false allegations of abuse, parental alienation without consequences, and inadequate enforcement of orders and agreements. Nearly 20 years later, many of the now self-represented litigants make these same complaints.

Prof. Keri Froc of the University of New Brunswick provided a thoughtful response on the National’s blog, but seems to single out one particular issue – that of gender,

Of course, when he is writing about self-represented litigants here, the context makes clear this is a code phrase for men.

The notion that there is gender bias against men in family law matters is not new. Ha-Redeye notes that “litigants” (presumably fathers’ rights advocates) made this claim before the Special Joint Committee on Child Custody and Access, which reported in December 1998. However, the committee found no gender bias, only that fathers who testified “perceived” there was bias.

I certainly do not use any “code,” but instead refer to numerous societal trends. I’m particularly sensitive to all efforts to remedy historically marginalized populations, including women, and have a long history of advocacy in all of those areas.

Although I made no such specific reference to any particular gender, I did emphasize that the issues two decades ago are markedly different than they are today, including a greater recognition of gender fluidity. There is also a growing body of research to demonstrate that smaller family sizes, increased education and participation of women in the workforce, and greater contribution of men to unpaid domestic work, have all created a subtle shift in some, but certainly not all, traditional heterosexual relationships in Western countries.

My point was that without a full evidentiary record, most interlocutory orders made by judges are premised on faulty assumptions or untested evidence about the domestic history of the parties or their division of childrearing and household duties (which can become relevant for spousal support or custody/access issues).

Instead, Prof. Froc pointed to the recent Canadian Research Institute for Law and the Family, an excellent first step in beginning to understand what is happening in family law, albeit focused on Alberta. However, this study, despite a lengthy one with some interesting insights, has some significant limitations. The methodology used in coding files for family violence made no investigation into whether the allegations were substantiated or adjudicated by a judge. Less than 15% of the files had any reference to domestic violence, but these cases created the greatest impact on the justice system,

For cases with any mention of violence, the length of time between the date of separation and the date of the filing of the statement of claim tended to be shorter (1.4 versus 2.6 years). Interim orders were issued more often in cases mentioning violence than in cases in which family violence was not mentioned. A much smaller proportion of cases with no mention of violence involved interim orders (2.9%), compared to cases mentioning violence (27.1%). Cases mentioning violence also took longer to complete, as measured from the date of the filing of the statement of claim to the date of the divorce judgment (1.7 versus 1.2 years).

What the study does demonstrate is that the simple allegation of violence is more highly correlated with a primary residential arrangement and less flexible child contact. This in of itself does not demonstrate bias or even necessarily abuse of the system, and may reflect necessities given the safety of those involved.

One of the biggest limitations with the study generally is the very small sample size of the files reviewed, which limits any statistical significance from its findings,

…it should also not be assumed that the files included in this study are representative of Alberta divorce files that are more complex than usual. Certain conclusions from the data suggest that the files reviewed were of significantly less overall complexity than might be expected if the files of high-conflict parties were oversampled…

Further research and analysis of the existing data should be conducted with respect to the impact of family violence. The findings of this report on the issue are important but only hint at the repercussions of family violence on the processing and resolution of divorce cases; more work on this important issue can and should be undertaken…

It’s clear then that any supposed evidence used to refute perceptions of bias by the public are as scant as evidence substantiating it. But Prof. Froc’s claim that there is no reliable evidence to suggest “a pro-female bias in the family court system” is also a stretch.

Consider the 2014 Ontario Superior Court of Justice decision in Children’s Aid Society of London and Middlesex v. C.D.B., where Justice Harper awarded $1.4 million in costs against the Children’s Aid Society for a 154 day trial. Justice Harper stated the mother had “manipulated the court by misrepresenting the facts” around allegations of abuse against the father, and provided a stunning condemnation against CAS,

[19] …the Society’s duty to act reasonable and fair extends to how it investigates its case and presents it to the court. With respect to how the Society investigated its case, I found in my judgment that they did not live up to their statutory duty to investigate thoroughly and objectively. They accepted the mother’s word without sufficient scrutiny. They did not properly investigate the allegations of coercion and abuse that the mother brought forward. They did not interview crucial witnesses who had material facts and could have shed a different light on the mother’s allegations, as I found that they did at the trial. They did not properly and thoroughly investigate the children’s allegations of the mother’s use of alcohol and her erratic behaviour.

Still a far cry from a finding of systemic discrimination against men, but certainly a compelling example of what can happen when things do go wrong, or are not sufficiently litigated to trial.

Absent a single case across all of Canada of a comparable level of abuse of the system based on false (and gendered) allegations, it’s too simplistic to say there can never be gender biases (and other biases) which play themselves out in the court system. Fortunately there are still many vigilant judges who ensure that allegations of any sort are still proven before basing orders, interlocutory or otherwise, on their basis.

A similar finding was made for a more modest cost award last year against the Office of the Children’s Lawyer in Eustace v Eustace, where their argumentative approach lengthened and complicated the trial. Justice Emery referred to the CDB case and stated,

[53] The role of the OCL and its predecessor, the Official Guardian, has been defined for many years to have a fact finding mandate. That mandate requires the OCL to put all evidence relevant to the best interests of the child before the court, to ascertain and provide the court with the views and preferences of the child and the context for those view, and to formulate a position to make known to the court taking the child’s best interests into account. Counsel for the OCL (formerly, the Official Guardian) is not entitled to express his or her personal opinion on any issue, including the child’s best interest: Official Guardian v. Strobridge 1994 CanLII 875 (ON CA)1994 Canlii 875 (Ont. C.A.). I am concerned that, in this case, counsel and the clinical investigator for the OCL may have permitted their personal views to usurp their professional function.

[emphasis added]

Although these cost awards remain unusual, granting them more frequently for unfair conduct would assist parties disadvantaged in this way to demonstrate such findings more routinely at trial, and would help parties get to trial to begin with. I’ve been pushing for greater judicial scrutiny of conduct, and mandatory consideration of cost awards, for some time.

Other examples of remedial efforts taken too far include Justice Zucker’s decision last year in R. v. Ururyar, which drew significant attention in its extensive reference of sociological work on gender issues and sexual assault in society. This week, Justice Michael Dambrot of the Ontario Superior Court of Justice ordered a new trial, indicating that Justice Zucker inappropriately referred to “rape literature” in a decision that was largely “incomprehensible,”

All witnesses, not just rape complainants, are entitled to have their credibility assessed on the basis of the evidence in the case, rather than on assumptions about human behaviour derived from a trial judge’s personal reading of social science literature.

I agree with the trial judge that we must be vigilant to reject pernicious stereotypical thinking about the behaviour of women. At the same time, we must not adopt pernicious assumptions about men and their tendency to rape.

[emphasis added]

The bigger problem with overzealousness in addressing gendered issues is that they can themselves create their own instances of injustices. Following her divorce in 2011, Jennifer Gauthier concocted a story that her ex-spouse attempted to choke and rape her, resulting in his imprisonment for 19 days. During her sentencing for public mischief, Justice Karen Lische of the Ontario Court Justice stated,

When you did what you did, you not only hurt (the ex-spouse), you hurt every real victim out there, every real complainant…

Now, because of what you did, real victims may be less likely to come forward and less likely to be believed … The damage you have done goes far beyond the 19 days (the ex-spouse) spent in jail for a crime he didn’t commit.

By ignoring specific instances where a gender bias may operate in the opposite direction, we actually stifle remedial efforts, and prevent broader societal change from occurring.

The other very significant point made in my piece is that public perception actually does matter. Chief Justice McLachlin stated in the Deakin Law Review in 2003,

The courts preserve public confidence in the justice system, not egoistically to protect the power of the judiciary, but as a necessary and key element of maintaining the rule of law. Indeed, as my former colleague, Justice Peter Cory wrote, it is ‘essential to a democracy and crucial to the rule of law that the courts are seen to function openly’. The rule of law cannot exist without an independent judiciary to uphold its authority. It is ‘directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect’. Without public confidence in the judiciary and belief in the legitimacy of their pronouncements, the courts are impotent to maintain the authority of the rule of law. Public confidence in the courts is thus a prerequisite for the existence of the rule of law and a cornerstone of democratic civil society.

[emphasis added]

Public confidence in the family law system is at an all-time low, and it has very little to do with gendered issues. As I stated recently to Ari Kaplan on his new radio show, Family on Air, in an episode focusing on self-represented litigants in family law,

…[T]he legal services that we provide, as lawyers, doesn’t effectively solve the issues between the parties… [I]f we see that the public confidence is dropping in our legal system, based on the way that we are dealing with these issues, every single one of us in the legal system has a responsibility to make those changes happen…

…[W]ith the exception of very few cases, and I think domestic violence would be an obvious example of that, they do not belong in the court. The family lawyers themselves have to recognize that the services they are providing their clients through the court system is not benefitting their client. More importantly, it’s not benefitting the children.

The effect on the children was the main complaint I cited from the Special Joint Committee on Child Custody and Access. Somehow the children get lost in the gendered debates, almost as much as they get lost in family law litigation.

I continued in my Kaplan interview,

…I take the position that there are no “winners” in family law litigation. There are only various degrees of losing, if you will.

That’s “losing,” whether you’re a man, a woman, or really any other gender.

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