MORE ON GENDER BIAS – A 2024 UPDATE

I wrote about gender bias in our court system literally decades ago.  I developed my thinking a little further at the year 2000 National Family Law Program where I presented and published a paper entitled, “Gender Bias: Where are We?”  I decried gender bias in a later article where I criticized (politely of course) Supreme Court of Canada Justice Rosalie Abella’s ground breaking decision in Bruker v. Marcovitz.

And now as we wrap up 2024, my attention was drawn to a fine legal analysis that two colleagues put forward in the Ontario Family Law Reporter, Volume 38, Issue #2 – August 2024.

The article is entitled, “Traditional Views, Modern Realities: Exploring Gender Disparity in Male Spousal Support Awards in Ontario”.  I present below the publisher’s summary of this article*:

This article discusses a concerning trend in some Ontario family law cases where courts depart from the Spousal Support Advisory Guidelines (SSAGs) when awarding spousal support to male recipients. It highlights two successful appeals where male recipients sought increased spousal support after the trial courts made errors in law.

In Abdelsamie v. Farid, the Divisional Court found that the trial judge erred in dismissing the husband’s claim for compensatory support based on incorrect reasons. The Court confirmed that using a “but for” analysis to assess compensatory support claims is inconsistent with the Supreme Court’s determination in Moge.

In Silver v. Silver, the Divisional Court agreed with the trial judge’s dismissal of the husband’s claim for compensatory support but found that theanalysis of needs-based support was incomplete. The Divisional Court stated that the significant difference in the parties’ incomes “cries out for an award of spousal support” and ordered mid-range reviewable support.

The article concludes by emphasizing that as marriages become more varied and dynamic, the family bar should be conscious not to allow historical gender biases to influence decision-making, as it erodes trust in the judicial system and is plainly incorrect.

I conclude that while it is still difficult for men to secure spousal support in situations where it would have been a “no brainer” had the gender roles been reversed, nonetheless the situation in Canada in 2024 is a lot better than it was during the previous century.  Yes, there is still much to be done but with precedents such as these, the uphill battle is a little less difficult.

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