Exploring the current inequalities men face in family courts

Sexism in child custody
By Janis McMath, Editor-in-Chief

In looking at physical custody statistics prior to 2006 in Canada, 68.7 percent of sole physical custody cases were awarded to mothers—while only 9.7 percent of men received such a ruling. During this time, only 10.2 percent of physical custody cases were shared.

Child custody is a hotly contested topic further complicated by the gender politics revolving around the issue. Should presumed equal shared parenting exist within the law? Is the law unfair to fathers looking for relationships with their children? Do children primarily need their mothers at certain ages? Countries all over the globe are still looking for the answers—and BC’s and Canada’s newest amendments to the law offer some of the best (and newest!) solutions to these controversial issues.

FAMILY COURT’S PERSISTENT ISSUES WITH BIAS

The history of family court actually begins with a bias in favour of men. Originally, in early English Common Law, the majority of cases rewarded men with sole physical and legal custody of children. In response, the “tender years” doctrine was created in order to create a bias for women in child custody cases. The ideology stated that women were significantly better caretakers of young children and that there should be a “presumption of maternal custody” in child custody cases. The system shifted from misogynist to misandrist quickly.

This bias of women’s traditional gender role as caretaker has unfortunately been observed in judges. A 2018 US study of more than 300 judges called “Expertise Fails to Attenuate Gendered Biases in Judicial Decision-Making” found an obvious favouring. In the study, it was observed that judges who believed in traditional gender roles for women and child raising were significantly biased—favouring the mother—in their verdicts on mock child custody cases. Yet these mock cases included an equally qualified mother and father. Of all the judges in the sample, only three percent allocated more time to the father than the mother.

The data shows that those presumptions of maternal custody were taken seriously for many years. In looking at physical custody statistics prior to 2006 in Canada, 68.7 percent of sole physical custody cases were awarded to mothers—while only 9.7 percent of men received such a ruling. During this time, only 10.2 percent of physical custody cases were shared. Important to note is that in those cases where physical custody was awarded to one parent, the Government of Canada’s page states that the majority of parents without physical custody often had “reasonable” access to the child; the definition of “reasonable” access is along the lines of “one night during the school week, every second weekend, and half of the summer holidays, with unlimited telephone access.” The definition of reasonable has been contested—and clearly with good reason. Such “reasonable” access inspired the derogatory term “weekend dad,” referencing how stereotypically uninvolved divorced dads are.

ARGUMENTS FOR AND AGAINST
THE PRESUMPTION OF EQUAL SHARED PARENTING

Some lawyers and activists have supported the proposal for legal presumption that both parents should be equally involved in an effort to make the law fair for both guardians. The idea is predicated on both parents always being essential to a child’s life—and many cite studies that have shown that children fare better with two-parent relationships instead of one. They also cite studies that list common problems (like poor mental heath) experienced by children from fatherless homes. While the idea is amicable, valid counterarguments point out the flaws with this approach to family law.

First, this legal presumption puts the onus on the parents to prove if the presumption is false in their own case. This can lead to fighting, bickering, and name-calling between parents—stressing the child or children greatly as they are stuck in the middle. Secondly, in cases of abuse, presumed shared responsibility can endanger the child. An automatic presumption of equal shared parenting can create difficult biases to fight against for the parent facing abuse. Even though the equal shared parenting is rebuttable, creating the necessity to rebut creates unnecessary barriers. Thirdly, this does not fit with the different schedules of different families. Ferrying children back and forth between houses can prove to be detrimental, especially considering schooling, but the presumption creates an obligation to this rigid structure. Presumptions have caused problems in our very recent past, so perhaps it would do better to do without them—just as new versions of BC Family Law and Canada’s Divorce Act have shown.

POSITIVE CHANGES TO OUR LAW

According to the Government of Canada’s website, federal family laws had not been significantly changed in 20 years—that is until 2019, when Bill C-78 was passed (one which was concerned with how the language of Family Law was impacting the outcome of cases). Changes in provincial laws, like those made in 2013 to BC’s Family Law, are similar to those in Bill C-78. Alberta has made comparable changes on a provincial scale as well.

The language used in courts previously suggested that there are “winners” and “losers” in family law cases. Such a system traps parents in a mindset where sole custody is the ultimate prize—regardless of the cost of damaging a relationship with your child’s other parent. Now, the system’s revised language and practice reflects its new goals: prioritizing the child’s best interests and encouraging shared parenting styles (instead of sole physical custody) when applicable.

Previously used terms like “custody” have been criticized as descriptors that conjure images of ownership more than healthy family relationships. Many places employ “parenting responsibilities” rather than “child custody.” Instead of pitting parents against one another, the new language is meant to change society’s perspective and expectations for child custody cases in a positive way that benefits deserving parents.

The change in tone has certainly prevented more cases from isolating fathers; current statistics considering physical custody show that the 2012-2015 dataset saw both men and women with a reduction in sole physical custody cases from the 2006-and-prior dataset: women from 68.7 percent to 51.8 percent—and men from 9.7 percent to 8.9. The cases resulting in shared custody increased from 10.2 percent to 26.5 percent. In an interview with the Other Press, Steve, a recently divorced father who is still going through the system, expressed his appreciation for the recent changes. He stated that the current system is not biased against men, but historically (and recently) this clearly was not the case. “The changes that were made to the Child and Family Law Act in June 2019 to be guided by the best interests of the child […] helped me tremendously in my divorce. I am certain that my ex-wife would have taken the children away from me and without my legal entitlement to access, I would have lost the opportunity to build a relationship with them.”