The Framework for dealing with Divorce in Canada is a patchwork legal system comprised of Laws (Federal, Provincial and local jurisdictions), Courts, Judges, Lawyers, mediators and related agencies such as Children’s Aid societies and women’s shelters, who operate without accountability, without oversight and independent of one another. Without comment at this point, I think we can all question, knowing what it takes for any level of co-operation within Federal and Provincial politics how this can possibly work. It doesn ’t. Yet this is the system mandated to guide families through crises. For anything to happen within such a system is a monumental undertaking if not impossible.
The federal and provincial governments have specific constitutional powers with respect to family law, and the territorial governments have specific responsibilities under their original acts. The federal Divorce Act generally applies when divorcing parents need to settle child custody, access and support. Provincial and territorial laws apply regarding child custody, access and support when unmarried parents separate or when married parents separate and do not pursue a divorce, as well as to some issues in divorce proceedings. These provincial and territorial laws contain provisions regarding parent-child relationships (parental authority, guardianship, etc.). The provinces also have constitutional power over the administration of justice, and the territories have delegated powers. The provinces and territories are responsible for establishing the rules of civil procedure and administering court services within their jurisdiction.
Spousal Support Guidelines – Recently introduced and invented by a committee of lawyers and judges sponsored by the Liberal Justice Ministry. These guidelines unlike the Child Support Guidelines do not have legislative approval yet are becoming the default for courts. More on this later in the book but this a good example of Courts overstepping their mandate by creating there own laws…. a very disturbing situation.
The Problem with Family Law in Canada - One of Many
The above short list is an overview but identifies to a large extent the problem. Family Law in Canada is so unnecessarily convoluted and complex it’s near impossible to get anything done. To use an analogy; if the tax system worked in this fashion, every citizen would make a trip to court each year for a judge to process their taxes. The complexity of laws, with gaps, combined with the varying jurisdictions, processes and dependencies makes the prospect of Justice elusive, enormously expensive, divisive and lengthy. Although a goldmine for the legal profession it is a disaster for a family in need of a new beginning.
Why disenfranchise fathers? Isn’t that a form of human right limitation? A lot of theories were developed to explain, research and reach a conclusion on this topic. One of them is the social capital parenting theory which explains the importance of a father in the family. It emphasizes the importance of a child’s relationships with a variety of adults and peers, who provide norms, role models, and social networks which are generally of value to the child’s development.
The more positive social contacts that a child has, the better, according to this theory. In stark contrast to the primary caregiver theory, it predicts that divorce will tend to have a negative impact on children insofar as it removes some of the most important sources of social capital for the child: one parent, along with the child’s entire extended family on that parent’s side.
To say I don’t have much respect for judges since my own experience is a huge understatement and comes from over my 12 years experience in court.
In fact, looking back it seems every time in court the outcome had already been decided regardless of the mountains of paperwork, applications, motions, affidavits, examinations and oh let’s not forget the factum which allows justification for whatever the outcome. The only thing left was the formality of lawyers and judges going through the dance in court.
Following are some examples of what the law says and how this is reflected in decisions.
The Divorce Act requires the court to verify whether there appears to be any possibility of reconciliation between the parties. Specifically there is onus on the lawyers to ensure that every effort is made for reconciliation. Judge Orders
After 12 years in the court I have yet to see this done or judge even question if an effort has been made. Then why would they when they themselves encourage otherwise. Why would a woman negotiate when by refusing to do so will guarantee victory?
When two people have a child, they each have an equal right to make decisions about their child’s care and upbringing. Judge Does
Custody and support goes to the women. Fathers, regardless of previous involvement have all rights to parenthood taken away. Equal Rights????
Both Parents have responsibility to financially support their children. Court Does
Once custody is awarded, there is absolutely no expectation for the women to contribute. There is no accountability to track efforts made or expectations to see this actually happens.
The parent that does not have custody of the children usually has to pay the parent with custody to help cover the costs of taking care of the children. Court Does
This is true for the father but the mother does not have to contribute to the children in the father’s custody. In fact the law doesn’t even recognize the children in the father’s custody when the woman is unemployed. This is just another way to encourage children to the women’s custody.
Law Says Parents have equal right to stay in their homes. Court Does
Once the custody is awarded, the house goes along.
The law expects adults to be self-sufficient and to look after their own needs to the best of their ability. Court Does
This is true for the man but not the women. The women can simply refuse to look for employment or retraining. The man will be forced to get employed and if unemployed even by way of retirement will have income imputed to continue to pay support.
If one parent has custody the other has access. Access is the right to spend time with a child. Court Does
Limits access. Even with access orders there is no enforcement for access as there is for support payments.
That the parent with custody has an obligation to keep the parent with access informed about matters such as the child’s school, doctor and daycare providers and must provide any information or reports requested by the parent with access, in the same way that they provide these for the parent with custody. Court Does
After 12 years I’m still waiting.
Judicial Discrimination: Custody judgements From Kevin Thompson’s book following are court arguments
used to discriminate against fathers.
THE PRIMARY CARETAKER ARGUMENT
The “primary caretaker” is a “Court-invented” label that does not exist in the intact family. In intact families, recognized by most as the optimal family unit, the parents are “co-caretakers.” Parenting responsibilities are shared equally with each parent contributing gender-specific influences that uniquely enhance the child’s physical, mental, and emotional development.
“ONE HOME BASE” ARGUMENT
A widely used argument to oppose joint physical custody is that children need one home base for continuity and routine. This argument revolves around the false notion that children need unvarying sameness above all else, to the exclusion of the other parent’s involvement if necessary. The classic refrain is that children will not be able to cope with two different caretakers and two different homes.
Yes, children need stability, but even more important are the need for consistency and predictability, or an awareness of what is to come. Children cope and adapt quite well with change when they know what to expect. Giving both parents equal parenting time with a consistent schedule contributes to continuity in the child’s life, not confusion.
Sacrificing the significant involvement of a father in a child’s life to accommodate the pie in the sky ideal of providing one home base for a child is insane.
The reality is that the child has two parents who do not live together. The court should have no higher priority than preserving the relationship with both parents because there is not a more powerful predictor of future well-being than the significant involvement of both parents in a child’s life.
Research and experience with infant day care, early pre-school, and other stable care-taking arrangements indicate that infants and toddlers readily adapt to such transitions and also sleep well, once familiarized. Indeed, a child also thrives socially, emotionally, and cognitively if the care-taking arrangements are predictable and if parents are both sensitive to the child’s physical and developmental needs (Lamb, 1998).
The evening and overnight periods with non-residential parents are especially important psychologically not only for infants, but for toddlers and young children as well. Evening and overnight periods provide opportunities for crucial social interactions and nurturing activities, including bathing, soothing hurts and anxieties, bedtime rituals, comforting in the middle of the night, and the reassurance and snuggling in the morning after awakening. These everyday activities promote and maintain trust and confidence in the parents while deepening and strengthening child-parent attachments (Emery, 1999).
*As child expert, Dr. Joan Kelly, points out, “Courts have overemphasized providing geographic stability of residence for the child at the expense of the more important emotional stability of regular time with each parent. It has been thoroughly shown, by work done in the last decade, that the problems associated with movement of children between homes are less than those created by removing one parent from day-to-day connections with a child.”
*In Wallerstein and Kelly’s book Surviving the Breakup: How Children and Parents Cope with Divorce, Basic Books, (1982). Instead, the courts exaggerate the effect of two home bases so that this MINOR inconvenience illogically outweighs the very real problems with sole custody to the mother.
“INABILITY TO COOPERATE” ARGUMENT
The “most flawed” argument used by the courts to deny a father his right to parent is that if one or both of the parents will not cooperate with the other or one parent will not agree to joint physical custody, then any form of joint custody is impossible.
This argument eliminates any possibility of due process and equal protection for fathers because mothers have the gender-exclusive power to “not cooperate” and “be hostile” to the father to ensure that joint physical custody is not even considered by the Court.
The unilateral choice to be hostile and uncooperative after separation is often used by mothers as a legal tactic since they are overwhelmingly more likely to gain custody. Mothers also enjoy the added convenience of pleading their case to judges who are eager to confuse legal conflict with genuine conflict outside of court. The out of touch judges in the family court system will rule that “since you two are in dispute over the custody arrangement, then joint custody will not work.” Therefore, in the best interests of the children, the primary caretaker of the children (guess who according to court stereotypes?) will have sole custody.
Joan Kelly in her work, Further Observations on Joint Custody, expresses a concern about the position that argues that joint custody should not be awarded when parents do not agree. As she points out, it is the woman who is opposed to joint custody. Women do not need to ask for, nor agree to, joint custody. They are presumed by society, lawyers, the courts, and themselves to have a right to keep the child. It is the father who must ask for joint custody and it is the mother’s power to agree or disagree. The Mother has a financial incentive to not cooperate. She is rewarded by the court for her refusal to cooperate with monthly tax-free support payments.
How does sole custody to the mother better respond to the parents’ inability to communicate? Sole custody forces the parents to be chained to each other financially for 18-23 years where, in many cases, the financially responsible parent hands over more than the money needed to support his children to the financially irresponsible parent, sabotaging his own ability to save for his Children’s future activity and educational costs. I call this argument “the most flawed” because, contrary to family court opinion, 50/50 joint physical custody is actually the most appropriate custody arrangement when the parents DO NOT get along. Joint physical custody provides a clearly defined schedule that does not give either parent the power to intrude in the other parent’s life, emotionally or financially. Neither parent is humiliated, devalued, or stripped of his dignity. And each parent has a more isolated influence on their child, independent of the whims and malice of the other parent.
“BEST INTERESTS OF THE CHILD” ARGUMENT
The “best interests of the child” standard is where we are now. A standard that is so vague that it gives judges the discretion to play God and interpret its meaning as they subjectively see fit.
I find this argument the most despicable because the “best interests of the child” is the very last thing that these profit-driven hypocrites are considering when they make their rulings. If the courts cared at all about the best interests of the child, then they would be interested in hearing what BOTH parents believe is relevant before making their rulings.
The Courts have subjectively interpreted the “best interests of the child” standard to mean removing loving fathers from the lives of their children and replacing them with cash payments and visitation hours. This is NEVER in the “best interests of a child” because there is not a more powerful predictor of future wellbeing than the significant involvement of BOTH parents in a child’s life.
In Nov. 1998 a government committee after 2 years of study and 55 Canada wide focus groups the report “For the Sake of the Children” was submitted with 38 recommendations covering many issues related to the Family and did not even deal with child custody. This study was initiated as a result of the introduction of the Child Support Guidelines in 1997. After 4 years of study the Child Support Guidelines were found to address a very narrow economic segment of divorce but did nothing to address the many other far reaching issues such as child custody. To date nothing has been done with the recommendations. In essence after 10 years of committee work the only result has been the introduction of the flawed Child Support Guidelines.
Throughout the process, there’s a catch phrase “in the best interest of the children” that is often used to support a view. Pretty hard to argue with…. but definitely it is not?
Summary of Government Distraction:
1991 – Discussion Paper on Child Support
1997 – Introduction of the Child Support Guidelines
– Formation Joint Committee on Child Custody and Access
– Committee Report “ For the Sake of the Children” was submitted to Parliament with 38 Recommendation.
– Government Response to Join Committee Report (45 Recommendations)
2001 – Consultations with Provinces and Territories
2002 – Report – Putting the Children First (40 Recommendations)
2006 – Bottom line: Over a period of 15 years, nothing has been done to address any of the major issues including Child Custody and Access.
I suspect that was the desired outcome in the first place.
The inability to arrive at a consensus and without a single accountability the problem is not so much what the law includes but more about what’s missing.
Preamble from Ontario “Family Law Act” – The words contradict reality.
Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in Ontario divorce law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children;
In general, Family Laws are so vague they require judges rulings on many issues that if better defined would not need to be argued in court. This also allows judges to invent their own laws as they go along and it becomes difficult to hold laws up to scrutiny. If for example, the biases in the court were actually written into law, there’s no way they would stand up to the “Charter of Rights and Freedoms”.
Most laws are written to ensure that the terms man and women, father and mother are replaced with spouse or parent. I guess this is a token effort to appear to comply with the “Charter of Rights and Freedoms” and show equality.
In practice, however, it’s quite different and to issue a “Human rights” challenge is like arguing balls and strikes with an umpire. The law is there but judge has his own strike zone.
Does it not seem obvious that when over 90% of custody, child, spousal support and cost orders go in favour of the woman it may indicate that the rights of both parents (genders) are not being treated equally?
In essence, the bias of the courts is a deterrent to justice.
⦁judges have taken it upon themselves to make the law and when challenged, case law (or mistakes of the past) are used as justification. Although pervasive I’m not sure that this is even officially acknowledged. When it is, the “in the kids best interest” seems like a good excuse to forgo any arguments. But is it REALLY????
Canada’s hallmark is the respect and integrity of its citizens above all else. The “Charter of Rights and Freedoms” encourages a just society free from discrimination. There is protection of rights based on an individual’s beliefs, race and gender. Issues such as, harassment in the workplace will not be tolerated.
At what point will the rights of all family members be respected equally????
To what extent do statistics, lobbying of special interest groups and the safe route play in the judgment? The impact of these judgments is incredible.
Whatever the decision, is it really in the “kids best interest”. Even in the competitive business world the notion of “win at any cost” has given way to partnership, co-operation and win/win solutions. To compromise is no longer to lose. There is a better way….Lets get “FOOCN” “Families Out of Court Now”.
This blog post includes an excerpt from the 2006 book Courts From Hell by Frank Simons
About Courts from Hell by Frank Simons
This blog post is an excerpt from his book Courts From Hell – Family InJustice in Canada. Frank Simons tells us since the introduction of the so-called “No-Fault Divorce” in Canada, the divorce industry has evidenced unprecedented growth estimated at $10 billion per year. The problem is that the Legal / Court industry thrives off the $B’s generated by Taxpayers and Families in crises. For this, they provide no value and in fact cause destruction of families by unnecessarily removing fathers from children’s lives and lowering the standard of living for all family members. This is done through unnecessary litigation, biased decisions and unreasonable support orders which escalate the conflict to perpetuate the status quo in support of their self-serving business. The Solution is to update divorce laws to reflect parental equality and get families out of court eliminating significant grief and $’s wasted by families and taxpayers.
This aims to provide a better perspective to child welfare, the research brought about a reevaluation of child’s custody status in each state. The journal of the American Psychological Association published a paper whose conclusions were endorsed by 110 eminent authorities around the world. Authored by Dr. Richard Warshak, the paper concluded, “…shared parenting should be the norm for parenting plans for children of all ages, including very young children.”
In a comparison of single parents vs shared parenting, a child raised by single parents account for
63% of teen suicides;
70% of juveniles in state-operated institutions;
71% of high school drop-outs;
75% of children in chemical abuse centers;
85% of those in prison;
85% of children who exhibit behavioural disorders; and