An Introduction to Fathers' Rights

INTRODUCTION

“Fathers Rights” provokes in the mindset of many a rather guttural, negative reaction. The idea that fathers could actually have “rights” that are worthy of protection in our society and in our legal system seems to provoke strong views, both pro and con.

I recall sitting in chambers with a colleague and very well respected and intelligent Ontario Superior Court justice. My colleague referred to my client along these lines: “Your Honour, you know that Mr. x is a leader in one of those fathers rights groups”. Both the lawyer and the judge rolled their eyes knowingly, both chuckling and smirking. In a manner as calm and respectful as I could muster under the circumstances, I informed them both that my client’s leadership in such a group was not a negative attribute. Even though my client was faced with severe challenges wrought by the court case, he nonetheless unselfishly gave of his time to assist other dads (and some moms too who are in these groups) with their problems. I also stated that surely in our democracy there should be nothing wrong with belonging to an organization that was dedicated to improving our family law justice system. I told Her Honour that my client should be praised for his altruism and volunteerism and not scoffed at. To her credit, the judge immediately backtracked and insisted that she meant no ill will to my client for being in that group. I even received a somewhat sheepish apology from opposing counsel.

ANIMOSITY TOWARDS FATHER’S RIGHTS

A search in legal research services and on the internet of “father’s rights” reveals some rather unflattering comments directed towards those who are in the “father’s rights” movement and those who might advocate on their behalf. Referring to the Canada Court Watch Project [www.canadacourtwatch.com] as a “father’s rights group”, Epstein and Madsen (This Week in Family Law FAMLNWS 2007, 14 Jan. 2007 – (at 2007 CarswellOnt 1267 – in Westlaw Canada – a closed subscriber only service, sorry) state: “In our view [Canada Court Watch Project] are a dangerous group which does great damage to the civil justice system and the rights of children. As family lawyers, we have a specific duty to oppose their vicious and misguided propaganda.”

An article in the Canadian Family Law Quarterly by Jonathan Cohen, a law clerk at the Supreme Court of Canada, and Nikki Gershbain, a law clerk at the Ontario Court of Appeal, entitled: “For the Sake of the Fathers? Child Custody Reform and the Perils of Maximum Contact" (2001) 19 C.F.L.Q. 121, attacks the “father’s rights” approach to child custody:

This article will provide a critique of the maximum contact principle.  In Part 1, we highlight the chief proponents of the principle, namely, fathers' rights groups, mental health professionals, and legislative reformers in Canada and elsewhere.  It is our view that the partnership between these three groups has produced an illusion of widespread support for the maximum contact principle, even though each group possesses a unique perspective and policy agenda.  In particular, we argue that father's rights groups have politicized issues of child welfare to the point where "fatherlessness" has become a widely accepted, though dubious, concept in Canadian child custody discourse.

According to Mr. Cohen and Ms. Gershbain, it is not acceptable to “politicize” issues of child custody. Yet according to them it is presumably acceptable for women's organizations (eg. Women’s Legal Education Action Fund – LEAF) to receive government funding to participate as intervenors in Supreme Court of Canada family law cases to the exclusion of any men’s groups.

Edmonton lawyer Marie L. Gordon's article in the Canadian Family Law Quarterly entitled ""What, Me Biased?" Women and Gender Bias in Family Law" (2001) 19 C.F.L.Q. 53 appears to imply that men do not have the right to do any political lobbying.  Ms. Gordon's attitude to father's rights groups is quite strong.  In her section entitled, "Misogyny Writ Large", she writes the following:

One of the most disturbing aspects of conducting research in this area is the exposure to what can really only be described as gender "hate literature."  A wander through some of the father's rights/men's rights web sites on the Internet is a sobering and disturbing experience.  The angry, embittered, personal tone of many of the writings make it clear that there is a problem of perception and experience. Many of the articles and writings descend to vilification, diatribe, emotional rhetoric, personal venting-of-spleen, anecdotal story-telling and name-calling.  The absence of intellectual/rational/empirical analysis or discussion is startling.

While these authors would surely be sympathetic to the plight of any traumatized human being, I find myself wondering why divorced fathers are seemingly accorded a societal exemption from being human. Should we be really surprised when disenfranchised dads respond less than calmly and logically when they are dispossessed of their children, subjected to false abuse allegations, psychologically destroyed by chronic depression, stripped of their assets beyond anything reasonable, and incarcerated when often sick or unemployed for not being able to meet support obligations? This is not to say that all fathers are legally innocent, but rather to note how politically fashionable it has become to demonize “fathers” for having the same human reactions that authors of such pieces would have were the situation reversed.

A MORE BALANCED PERSPECTIVE OF FATHER’S RIGHTS

Other commentators have been a bit more balanced in their approach: For example, in the Canadian Bar Association National Magazine of December 2003, Sheldon Gordon gives a fairly lengthy exposition of some of the players and themes extant in the movement. Gordon writes:

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.

National Post columnist Barbara Kay, long known to be sympathetic to gender equality issues, in a 30 December 2009 column entitled, "The end of the gender wars", hypothesizes that society is witnessing an end to the strident anti-male feminism of earlier years. Kay writes: “Commonsensical Canadians are losing patience with the angry, blame-all-males school of feminism.” Kay continues to posit some rather hopeful predictions for the coming decade. This includes:

Equal parenting will become the default custody arrangement as the optimal situation for children; the resultant decline in adversarial legal battles will diminish false allegations of abuse by women and punitive support-withholding by men, both of which punish children more than parents;

STRONG SUPPORT FOR FATHER’S RIGHTS ISSUES IN CANADA

Indeed, a Nanos poll canvassed a sample of 1002 Canadians in March 2009 and found that support for equal shared parenting (which is the core issue for the father’s rights movement), enjoyed overwhelming popular support across the country. Across Canada, 78% of those polled either strongly supported or somewhat supported equal shared parenting. In Quebec, the percentage was a staggering 86.3%. Support for equal shared parenting was high amongst supporters of all political parties: 80.4% of those who identified themselves as Liberals were on board and 77.8% of Conservatives were supporters.

Academics such as Prof. Edward Kruk of the University of British Columbia have written persuasive articles based upon solid academic and empirical research. Prof. Kruk supports father’s rights issues such as equal shared parenting. For example, Prof. Kruk has written: “Child Custody, Access and Parental Responsibility: The Search for a Just and Equitable Standard” where he persuasively and cogently lays out the arguments for equal shared parenting as only an accomplished academic can. To find this article at the FIRA web site, go to http://fira.ca/resources.php and search for “Kruk” or “parental responsibility". I quote from the executive summary of that article:

Children’s needs are considered paramount within such a perspective,
and the vast literature on children’s adjustment to the consequences
of parental separation is used as a foundation for the development of a
new approach to child custody determination. Research is clear that
children fare best in post-separation relationships in which they maintain
meaningful routine parental relationships with both of their parents
beyond the constraints of a “visiting” or “access” relationship, in which
they are shielded from destructive parental conflict, and in which they are protected, to the highest degree possible, from a marked decline in their
standard of living. Contrary to current practice and dominant socio-legal
discourse in Canada, when parents disagree over the living arrangements
of their children after separation, new evidence suggests that these
conditions are best achieved by means of a legal shared parental
responsibility presumption, defined as children spending at least 40 per
cent of their time with each parent, rebuttable only when a child is in need
of protection from a parent. The current framework of sole physical
custody in contested cases is associated with high rates of father (and
sometimes mother) absence, increased inter-parental conflict, and a
marked reduction in children’s standard of living.

WHERE DOES GENE C. COLMAN STAND ON FATHER’S RIGHTS?

I have been associated in one form or another with what is called “the father’s rights movement” since the mid – 80’s when I was most privileged to take a case to trial where the dad wanted “joint custody” notwithstanding the mom’s opposition. The Divorce Act had just been amended to insert the so-called “friendly parent” provision that mandated one factor to consider is the willingness of each parent to afford maximum parent/child contact with the other parent. A favourable custody assessor’s report and a sympathetic and somewhat pro-father (or at least not anti-father) judge enabled my client to achieve joint custody in a precedent setting decision. As a result of this case, I was invited to speak to fathers’ groups and in the process I received an education and very valuable information about family law that had been sorely lacking at law school. Slowly but surely, I began to develop a fresh perspective to the issues that impact parents in family law.

The original appellation of “father’s rights” should more appropriately be labeled as “family rights”. This is why the acronym “FRM” has been adopted by many – the “Family Rights Movement” encompasses issues that affect mothers, fathers, children, grandparents and relatives, second spouses, and step-parents. It is difficult to find a family today that hasn’t been affected by the Divorce Act or family breakdown. Starting in approximately 2001, I was very involved in laying the groundwork with others for the cross Canada umbrella group that eventually became the Canadian Equal Parenting Council or CEPC. It is a coalition of family rights groups that is endeavouring to promote equity and fairness issues in family law across Canada. I served as its first Secretary-Treasurer and remain in an advisory capacity to the Board of Directors.

CEPC has the following mission statement:

  • Family law reform starting with rebuttable presumption of equal shared parenting;
  • Gender equality;
  • Recognition of domestic violence as a genderless social dysfunction;
  • Adoption of child and parental rights in the UN Convention on the Rights of the Child within a clear statement of state vs. family boundaries.

I was at first strongly opposed to any presumptions in Canadian child custody law but over the years my views began to change as I read more and listened more. Now, I strongly advocate for a rebuttable presumption in favour of equal shared parenting – this is the most important issue in the “Father’s Rights” (Family Rights) movement. I approach equal shared parenting not however as a father’s rights issue. I view it as a basic fairness and equity issue for kids and all members of the family. I support equal shared parenting because I firmly believe that it will decrease post separation conflict and increase benefits for the kids of Canada. A decrease in conflict will surely reduce lawyers’ fees in separation and divorce. I am a lawyer. More conflict often means more fees. Still, I stand up for what is right in this society and equal shared parenting is simply “right”.

On other issues that are perceived as tied to the Father’s Rights Movement, do I support dads because they should have rights? All citizens (women, men, children) are entitled to “rights” in this great country. We are truly blessed to live in a country like Canada and we are privileged to enjoy various legal rights. We should be able to equally enjoy those rights irrespective of such factors as gender, race or religion. We should all be able to benefit from the rights granted to us by the constitution and by our British common law system.

But men are quite often not treated equally in the family justice system. To suggest that men, because they are men, should not enjoy a close relationship with their kids post separation is abhorrent to me. To suggest that the starting point for father access to children post separation should be only every second weekend is a concept that I find offensive. To suggest that generally men must provide for women's financial security for many years post separation is likewise objectionable. (I agree with there being spousal support as based upon the statutory criteria in our legislation. However, I am aghast at how when men have legitimate spousal support claims based upon the legislation, it is next to impossible to succeed when on similar facts, women generally succeed.) I am horrified that men appear to be treated differently in Canada’s courts than are women. (There is an unpublished study conducted by one individual who analyzed many cases and demonstrated that there is a high correlation between gender and success in family court and in family law appeals.) Soooo, I am not a huge supporter of “rights” just because someone is a man. I support and advocate for the rights of all – men, women, children. Therefore, I am personally more comfortable with the appellation, “Family Rights Movement” than with the label of “Father’s Rights Movement”.

I wish that men would be able to more liberally exercise their responsibilities towards their children. I wish that there were not institutional blockages influenced by gender stereotypes that serve to obstruct men in their desire to be involved fathers to their children. I wish that judges and lawyers would look more at the evidence in each individual case rather than coming to premature conclusions based upon myths and stereotypes. I wish that more family law cases would not even get to court and that would happen if our laws were written and applied in a manner that encouraged equal shared parenting and more equitable child and spousal support resolutions.

So, that is where I, Gene C. Colman, stand on “FATHER’S RIGHTS”. I stand for fairness, equity, fair dealing, and most of all – achieving a result that is good for children.

Gene C. Colman

January 17, 2010