Canadian Bar Association

Fathers' Day

December 2003, By Sheldon Gordon

The fathers' rights movement has shaken the family law Bar, from law offices to courtrooms to government. Its members are dedicated to their cause, unwavering in their beliefs, and furious with judges, lawyers and politicians. They evoke sympathy from some and scorn from others, but they can' t be ignored any longer.

In June 2002, Peter Cornakovic of Burlington, Ontario, entered a family court in Milton and approached the bench, while calling for the police to be summoned. Cornakovic then grabbed Justice Terrance O' Connor and placed him under a "citizen' s arrest," allegedly under the provisions of the federal Crimes Against Humanity and War Crimes Act, based on some of the judge' s decisions that awarded custody to mothers instead of fathers.

The police did come and quickly arrested Cornakovic, who was upset with his court-ordered support payments and his seven-year court battle with his ex-wife. But although his citizen' s arrest went nowhere, Cornakovic did become something of a folk hero in some quarters — specifically, to the growing number of fathers' rights groups in Canada.

"Just as David once stood up against Goliath," wrote the Canada Family Action Coalition (CFAC) of Calgary on its Website, "Mr. Cornakovic decided to stand up against the tyranny of court." Toronto-based Fathers Are Capable Too (FACT), while discouraging Cornakovic' s tactics, did issue a press release stating its belief that "there are grounds for an investigation and prosecution of the charge of crimes against humanity as persecution and enslavement."

In a society where men still hold most positions of legal, economic and political power, a fathers' rights movement might seem strange to some. Yet in the past decade, networks of divorced dads have begun demanding a new deal for fathers under the Divorce Act. Seeking to make "equal custody" the parenting model for children of ruptured marriages, fathers' rights groups have become vocal rebels against the status quo.

Some groups even engage in street protest. Members of Toronto-based DADS Canada have frequently picketed the offices of what they call "deadbeat judges" — justices who, they claim, "didn' t read the paperwork or insist their access orders be enforced." The group has also picketed the homes of "deadbeat moms" who allegedly refuse to heed court orders, and urges that they be liable for jail time, the same as "deadbeat dads" who fail to pay support.

Fathers' rights organizations say males are being persecuted and victimized by the family court system. They argue that female violence against men is intentionally underreported. They hold vigils for men who have committed suicide allegedly because of family court decisions and onerous support payments. They are angry and passionate about their cause. And despite the wishes of more than a few lawyers, they are not going away.

A strident voice

The fathers' rights movement is a widely diversified network of dozens of groups, loosely affiliated through Website links and common ideals. While the largest of the groups have no more than 100 registered members, they claim to speak for a much wider constituency.

"Each group has its own way of doing things," says Gus Sleiman, spokesman for the Calgary-based Men's Educational Support Association (MESA). "Some concentrate on children's rights, some only insist on men's rights. But all say that we need equality in parenting."

The movement arose in the late 1980s as provinces adopted tougher enforcement of child support orders, causing many divorced fathers to resent a system they felt was stacked in favour of their ex-wives. Fathers' rights advocates speak out on a number of issues — onerous support payments, alleged judicial bias and others — all of which touch in some way on divorced men who feel unfairly treated by the family law system.

The groups and their many lawyer advocates reject accusations that they are hostile towards women. "We have no quarrel with women as a group," says Gene Colman, a Toronto family lawyer, on his Website. "Let us not forget that there are many women, particularly poor women and native women, who likewise quite often are not being treated well by the courts, particularly in the child welfare field."

Indeed, many of the groups favouring equal custody have women among their members, and several are either composed entirely of or headed by women, including Mothers For Kids in Toronto and the Alberta Federation Of Women United For Families in Calgary.

FACT cites a COMPASS poll conducted in 1998 as proof that public opinion is on its side. Asked "how important is it for children from divorced parents to maintain an ongoing relationship with the non-custodial parent," 80% of respondents said "very" and another 17% said "somewhat." Replying to another question, 60% said "the needs of fathers" receive "too little attention" from family court.

If these results are accurate, then why haven't fathers' rights groups won more political support? "The politicians think the radical feminists represent enough people that they' ll lose votes," says Carey Linde, a Vancouver family law practitioner who acts mainly for fathers. "But I believe the vast majority of women believe in shared parenting. Even the courts have advanced remarkably compared to the politicians."

Not that the fathers' rights movement is prepared to rescind its criticism of family law courts. Gene Colman, in a presentation to FACT asked: "Is there a particular problem with gender bias in Canada' s family courts? I believe that there is ….

"Many of my colleagues openly admit to telling their male clients, ‘It is not a good time to be a man in the courts of Canada these days.' We say this because we know from admittedly subjective experience that to succeed as a man in court, it is much more difficult than if you are a woman. That is the reality."

There's also some serious animosity between many fathers' rights advocates and many family law practitioners. The movement has often derided lawyers as promoting "the divorce industry," and anti-lawyer screeds are common on many fathers'rights Websites.

Mickey Campbell, president of Kamloops, B.C.-based Parents of Broken Families, doesn' t mince words. "I know these lawyers around here. Lawyers are trying to get their clients better deals; they use trickery and subterfuge. But that should not happen when it comes to the dissolution of marriages, which affects children.

"Most men are conciliatory and want to have as little rancour as possible," he says. "But once you get a lawyer involved, there's no hope for a just settlement: they cause so much hostility and bad feeling with their false accusations and exaggerated accusations in an attempt to colour the judge' s judgment."

The family law Bar is just as severe in its return criticism. "A number of the most vociferous activists on the fathers'rights side have got some really serious parenting problems," says Halifax family practitioner Lynn Reierson.

The sternest critics of the current system, adds Charlottetown sole practitioner and current CBA-P.E.I. President Ron Profit, "are often the individuals who quickly invoke and use the courts. They are often the individuals attempting to make the system as adversarial as possible," and become bitter when they lose.

Custody and access

All fathers' rights groups in Canada have a common flashpoint of anger: the current child custody system, under which women usually end up with custody of children and men usually end up with access. The groups allege anti-male gender bias in the courts — a bias they claim is reinforced by similar attitudes in the federal Justice Department, the family law Bar, and the media.

"The [Divorce Act] is gender-neutral, but there is a gender bias in the system — and in society," says Linde. "The bias is that the children should stay with the mother. The simplest way to change the law is to enact legislation which creates a rebuttable presumption of 50-50, equal-time, shared parenting."

FACT vice-president David Osterman asks: "Why do judges order — ‘in the best interests of the child' — that the child is to live in poverty, and then try to solve that by forcing the non-custodial parent to pay money to the mother, who is not supporting the child? Rather than kidnapping kids from one parent … and forcing the victim of the crime to be extorted, an unbalanced starting point, why not state upfront that each parent is to have 50% of the time?"

FACT' s Website warns that presumptive awards of custody to mothers are causing major social pathology: "It is well-established that children need both parents, with or without the trauma of divorce. Loss of the father is the best predictor of later incarceration, psychological and educational problems and teenage pregnancy, as well as numerous other harms to children."

The alleged bias favouring mothers in custody awards is just the first of many points at which fathers' rights groups butt heads with the family law Bar. "My fellow lawyers see few examples of gender bias," says Profit.

"By and large, the courts are even-handed," he maintains. "The perceived gender bias is because the mother usually gets custody. But that' s because she' s had the primary responsibility for child care before and after separation, and the courts aren' t prepared to look at a new regime for care."

Reierson, who represents Read More ..n than women in her practice, believes the courts are right to give significant weight to "the care that kids are used to, and the proven ability to provide the care." If this results in a de facto gender bias, she says, "I don' t apologize for that. Whoever alleges they are a primary caregiver has to present to the court the evidence that in fact they are.

"It' s not a matter of coming in and saying, ‘I' m the mom, so obviously I must be the primary caregiver,' " she adds. "In lots of households, those duties are shared, and if they are shared, it' s very hard to prove that one party or the other is the primary caregiver."

Fathers' rights groups point to data compiled by the Justice Department showing that 80% of parenting orders have given mothers sole custody, while only 10% have given fathers sole custody. But Reierson says that statistic "doesn' t tell me a whole lot."

In Nova Scotia, she says, no more than 20% of divorces result in sole custody, and two-thirds of those are by consent. "I can' t imagine why there' d be a problem with consent orders for sole custody," she notes. "Then you' re left with an even smaller percentage of contested cases where moms get sole custody, almost all" of which involve family violence.

But fathers' rights groups have an answer here as well. When sole custody is awarded to mothers by consent, they argue, it' s usually because the fathers believe the system is stacked against them and don' t put up a fight. In that sense, they say, it' s not consent so much as resignation to a fait accompli.

"Not based on my experience," says Reierson. "In my practice, the vast majority of consent orders are for joint custody, though not necessarily 50-50 time-sharing," she says. "Occasionally, they are for [the mother's] sole custody, but it's not because the father is giving up.

"Overall, men have more resources than women to fight about this," Reierson says. "We do not have an effective legal aid system that gives women an advantage over men in these cases." She adds that often, the father who represents himself has the backing of an organization. "A lot of those guys are self-represented by choice — because as a group, they think they can do a better job than hiring a lawyer."

Bill C-22

If fathers' rights groups dislike the current child custody system, then they loathe Bill C-22, which contains numerous amendments to the federal Divorce Act. Presented to Parliament in December 2002, the bill would eliminate the terms "custody" and "access," replacing them with "parental responsibility" and "contact."

Judges would issue a "parenting and contact order," based on the traditional overriding concept of "the best interests of the child." That determination, under s. 16 (2), would be made with reference to a list of criteria, including:

• the child's heritage and spiritual background,
• the child's relationship with each parent,
• which parent did most of the childcare before separation, and
• whether either parent has ever been violent or has a criminal record.

Contrary to the wishes of fathers' groups, however, the bill did not set out a legal presumption in favour of either parent or of any particular parenting arrangement. Fathers' rights advocates are insistent that only legislatively mandated custody arrangements can defeat the anti-father bias inherent in the family court system.

Infuriating many divorced fathers, Justice Minister Martin Cauchon rejected the key recommendation of a special joint Senate-Commons committee whose 1998 report, For the Sake of the Children, advocated "shared parenting," a regime that would "maximize the involvement" of two parents in the child' s life. "Parents don' t have rights vis--vis their children," said Cauchon. "They have responsibilities."

Bill C-22 provoked an angry letter from 39 equal-custody groups across Canada, ranging from Fathers for Equality in Victoria to the New Brunswick Children' s Equal Parenting Association in Saint John. "Eliminating custody and access language from the Divorce Act will do precisely nothing to alleviate the suffering of countless thousands of Canadian children," said the joint letter.

Addressing the Minister, the groups said: "[Y]ou are trying to use a notion of ‘parental responsibility' to suppress consideration of the real needs of children and the indispensable rights of all parents…. We believe that your political investment in hatred toward men has blinded you to the fact that you are destroying the fabric of society."

As much as fathers' rights groups champion the cause of presumptive shared parenting, the CBA' s Family Law Section is dead-set against it. The Section says the "best interests of the child" principle should remain paramount, and that judges need flexibility to make that determination. The CBA rejects a legal presumption of shared parenting as the starting point for family court decisions on custody.

"We're not representing mothers'rights or fathers' rights, but an in-the-trenches perspective," says Section Vice-Chair Judith Huddart of the Toronto firm Dranoff & Huddart. "We' re not promoting any agenda, except perhaps the best interests of the child."

Notwithstanding this position, the Family Law Section is otherwise rather lukewarm in its support of Bill C-22. The Section was not "necessarily in favour of making changes to the Divorce Act on custody and access," says Huddart. "If it ain't broke, why fix it?

"[But] we ended up acknowledging that the direction the government was taking wasn' t unreasonable, given what was happening in the real world," she says. "You were seeing parenting agreements in most separation agreements. They probably saw that the terminology in the legislation was lagging behind what was actually happening."

Reierson and Profit, both former Chairs of the Section, also view Bill C-22's amendments to the language of "custody" and "access" with a fair degree of skepticism. "Changing the language to something that nobody has defined is a bad idea," warns Reierson. "It will increase litigation and cause all kinds of problems.

"I don't see a benefit to children or litigants on either side of the gender divide, in changing the language to ‘parental responsibility,'" she says. "It's not a bad idea to include some specific factors [on which to base parent contact decisions], but the ones they've included look pretty obvious to me."

While fathers' rights groups may be highly critical of family court, that' s not stopping them from advancing their goals on another judicial front. FACT and three other groups have launched an action in Federal Court to overturn the child custody provisions of the existing Divorce Act.

Their statement of claim says that the legal test used to decide which parent obtains custody is biased against fathers, thereby violating the discrimination provisions of the Charter of Rights and Freedoms, as well as the United Nations Convention on the Rights of the Child.

"Divorces are hard on everyone, especially the children," says Gerald Chipeur of Calgary's Chipeur Advocates, who represents the plaintiffs. "This lawsuit claims that the current divorce laws actually make things worse, by making custody hearings just another ‘battle of the sexes.'That adversarial system should be replaced with an emphasis on joint, equal custody that recognizes that children need time with both their mom and their dad."

Seeking progress

The fathers' rights movement, despite the attention it has attracted, knows it has not achieved any kind of victory. "All we' ve done is to get people to listen to us," says Mickey Campbell. "I' m a realist. Governments are concerned about voting power — they'll only listen if you've got lots of members and can affect the vote."

The Canadian Committee For Fairness In Family Law, a national group based in Pickering, Ont., remains optimistic about making headway. "I know there' s a lot of frustration because of the intransigence of the people who work in the federal Justice Department," says spokesman James Hodgins. "But once we have a change of leadership within the Liberal Party and some of the senior ministries, perhaps a new direction will go to the Departments."

Judith Huddart believes the aggressive tactics of the fathers' rights groups have done their cause more harm than good. "I think the fathers' rights movement is perceived as supporting a certain stereotypical approach and position in terms of children," she notes.

"I don' t think anybody perceived in that way is going to get as much credibility as someone who is open to changes and accepting that they're not always right. Once you get stereotyped … then a lot of what you say is dismissed, whether it may have some merit or not."

But Huddart is hopeful that the movement may splinter if Ottawa lives up to its commitment to provide more funding for mediation, parent counseling courses and other resources for divorcing couples. "I' m sure there will always be the diehards who want to be seen as victims," she says.

"If the support systems are put in place, however, we can pull some people who have been attracted to the fathers' rights movement away from such a one-position approach and get them back to focusing on their children."

Sheldon Gordon is a freelance writer based in Toronto. His last article for National, "Falling through the cracks," was the November 2003 cover story.

COMMON GROUND?

Fathers' rights advocates and many family lawyers appear to have a common dislike: the federal child support guidelines. But that doesn' t make the two groups friends.

Despite the animosity between the family law Bar and the fathers' rights movement, its members do appear to have one thing in common: a dim view of the child support guidelines promulgated under the federal Divorce Act.

The existing guidelines, which will continue despite the new legislation, allow ex-spouses who are paying child support to reduce their financial obligation if they engage in "shared parenting," defined by the guidelines as spending 40% or more of the time with the child.

Like other fathers' rights groups, the Canadian Committee for Fairness in Family Law of Pickering, Ont., dislikes the 40% rule. "[It's] something that needs to be changed," says spokesman James Hodgins.

"It's a particular marker that was put in the sand and does not reflect the reality of the costs that the non-custodial [parent] has," he says. "Somebody whose kids are living with them, say, 33% of the time — 120 days of the year — is not given any recognition of the costs they incur for food and shelter."

The CBA doesn't think highly of the 40% rule either, albeit for different reasons. Profit points out that in a dual-income family where both spouses are earning $50,000 and where each has the child 40% or Read More .. the time, it can be that neither parent would be obliged to pay any child support under the guidelines. "We suggested moving away from the 40% guideline," says Huddart, "but it sounds like the government isn't quite sure what to do about that."

But here too, the bad blood between fathers' rights groups and family lawyers is clear. The fathers' push for joint custody is "really financially driven as much as anything else," Huddart charges, "because their assumption is, ‘If we have joint custody, I won' t have to pay any child support. It doesn't matter that my wife earns half of what I earn.'

"But those people who are crying foul and saying the system is discriminating against them — those are the ones where you have to look behind what they're saying to what they want to achieve as their end result," she says. "I don't want to say these things are all driven by money, but that is problematic, and it's probably going to continue to be problematic."

Carey Linde, a Vancouver lawyer and fathers'rights advocate, dismisses the idea that the push for shared parenting is financially motivated. "That is such aberrant nonsense," he says. "If there are two fathers who want 40% of the time in order to save money on child support, there are 1,000 mothers who deny fathers 40% [of the time] in order to make money."

Charlottetown family lawyer Ron Profit doesn't accept Linde's 1,000/2 ratio, but does think the temptation to exploit the 40% rule "cuts both ways. Some women try to make sure the husband doesn't have 40%." Montreal family lawyer Miriam Grassby doesn't even go that far: "If a parent felt that the other parent's main reason to have Read More ..me was to pay less support, they're certainly going to be conscious of the time/money relationship. But I haven't seen much of it."

The 40% rule is only one of the concerns with the child support guidelines. In a lawsuit in which he is challenging the child custody laws, Calgary lawyer Gerald Chipeur is also challenging the entire federal child-support model.

According to his statement of claim, the federal model "arbitrarily requires men (in 90% of the cases) to make payments to their former spouses, using a formula that is not based on the needs of the children." He says this violates the Charter protections against discrimination. The model, he argues, "does not require the child support payments to be accounted for or in fact spent on the children. This deprives children of financial security."

Chipeur also contends that the model "establishes a new tax — a tax on being divorced and a father — and directs the tax revenues to a former spouse, not the children. It violates the constitutional separation of powers between Parliament and the judiciary by delegating to the courts the power to set taxes."

In an interview, Chipeur concedes that for incomes under $100,000, "the model works. However, for incomes over that, there's too much money going above the actual need, and it goes up exponentially with income."

On this point, Reierson actually agrees. "It's absolutely true that at the high-income end, it's a transfer of wealth, and it is oppressive at the low end, too. [As it goes up beyond a certain income,] it grossly benefits the receiving parent." The problem, she says, is devising an alternative model that doesn't have flaws, too.