Judge not, lest ye be judged

In family courts across the land, judges hold effectively the same powers over separated parents as feudal lords held over their serfs, and it pleases them to exercise this power without much restraint.

Grant Brown - June 15, 2008

Superior Court Justices in Alberta are referred to as “My Lord” and “My Lady.” This is no empty formalism. It is not a quaint anachronism left over from a bygone era. In family courts across the land, judges hold effectively the same powers over separated parents as feudal lords held over their serfs, and it pleases them to exercise this power without much restraint.

A perceptive cultural anthropologist studying Canadian family courts in the 21st century would notice a second feature reminiscent of feudal society: the inveterate chivalry that pervades the entire family-law system. Our Lords and Our Ladies reflexively defer to women in court, especially mothers. Motherhood is sacred; the role of our noble knights in shining armor on the Bench is to protect it at almost any cost.

Gender-based inequality in the application of the law by all-powerful judges results in a drastic loss of freedom in the lives of fathers who have the misfortune to become estranged from the mothers of their children. This disenfranchising of fathers follows immediately upon separation, in most cases at the instance of the mother, and regardless of whether or not the father had done anything wrong – legally, morally, or prudentially. Most importantly, it has terrible long-term consequences for the children of these broken homes.

Judges need to be held to account for their role in the destruction of families. They in effect usurp the role of the natural father in a child’s life by routinely evicting fathers from their own homes as soon as the mother wants a separation; by giving sole custody or “primary care” to mothers as a matter of course; by refusing to enforce even the meager and insulting “visitation” orders they issue to fathers; and by burdening fathers with sometimes crushing but almost always substantial child support and alimony awards.

Post-separation, fathers are ushered to the back of the bus, to be obedient, second-class parents. In favourable cases, they retain a kindly avuncular status in their child’s life; in less favourable cases, they are reduced to the psychological state of an automatic teller machine. By actively assisting to push fathers to the sidelines of their children’s lives, judges go a long way toward creating “deadbeat dads” out of ordinary, loving fathers.

Some Canadians are concerned about the fact that we have no constitutional protection for property rights. The Crown is the “ultimate owner” of all land in Canada, and your title to it is merely a grant of permission to use it that could be revoked, without compensation, at any time the government chooses. In my view, this is a valid concern, although it must be said that the absence of property rights in the constitution in practice affects only a relatively small number of Canadians, once in a while.

What most Canadian men should be more concerned about is that they have no constitutional protection for their parenting rights. The courts are the “ultimate legal parents” of all children in Canada, in basically the same sense that the Crown is the “ultimate owner” of all land. But as a practical matter, your care and control of your children is at much greater risk of being taken away by the courts than your property is to be confiscated by the government. And whereas the government is likely to compensate you for the property it expropriates, the courts are almost equally certain to make you pay for the privilege of not raising your own children.

Do I exaggerate? Hardly. In 2003, Liberal Justice Minister, Martin Cauchon, felt he could state without fear of political repercussions that “Parents have responsibilities, they don’t have rights.” Last year, in a widely followed Saskatchewan case, a newborn infant was adopted by an unrelated couple against the wishes of the biological father, who was willing and able to care for him. This case was not unique by any means.

The idealistic denial of parental rights is meant to pave the way for courts to make rulings that are strictly in “the best interests of the child.” This is problematic in all kinds of ways. Taken to its logical conclusion, children should be adopted out to the best available couple from their neo-natal ward, rather than being sent home with their biological parents. You might think that my argument contains a false premise, since in almost all cases the biological parents will in fact be the “best available couple” for any given child. And for reasons of basic human psychology, I am inclined to agree with you. But that is precisely the argument advocates of a legal presumption of equal shared parenting make about custody at the time of separation.

The decisive practical problem with implementing the “best interest of the child” standard is that judges are exceptionally poorly placed to make that call in anything but the most obvious of cases or the most general of ways. Except perhaps in the most expensive and drawn-out of trials, judges have nothing remotely approaching the level of information about and familiarity with a child or his or her familial circumstances that would permit them to take a reasonable stab at determining what is in any unique individual’s best interests. What this means in practice is that M’Lord or M’Lady simply makes a crude delegation of who will make which decisions on behalf of the child. Thus the dispute quickly and inexorably devolves into an adversarial, winner-takes-all battle over who is the “better parent.”

This battle is usually fought, at least in the early stages that are often determinative of the ultimate outcome, on the basis of a 10-minute theatrical performance from two lawyers who are practiced at obfuscating the character flaws of their own client and at smearing the character of their opposite’s client. The information that gets to the judge is thrice filtered: first by the client when advising their lawyer; second by the lawyer when preparing an Affidavit; and third by the judge who retains selectively what is presented in court.

Since nothing of importance can be established in this manner, judges end up relying very heavily for their decisions upon myths, stereotypes, and simplistic rules of thumb. These are given the weighty rubric of “precedents” or “authorities,” which almost always favour the mother. The rules of the game impose a huge burden on fathers to prove that they should be allowed to remain a meaningful part of their child’s development.

The hostile, expensive, drawn-out, winner-takes-all battle over who is the “better parent” that our adversarial legal system promotes is highly detrimental to the child. Children are exposed to seriously elevated tensions between their parents. Parental incomes end up supporting the children of lawyers, judges, psychologists and social workers who are called into the legal battle. And for what? To show that mom or dad is the “better parent” by even the slimmest of margins, and therefore is entitled to “primary care.” It seems to have escaped our learned judges and experienced counsel that this whole exercise is fundamentally misconceived, because what is truly in the best interests of the child is almost always to have both parents remain as heavily involved in their lives as is practically possible.

Paradoxically, the way to promote the best interests of children is to give both of their parents strong presumptive rights to care for them more or less equally in the event of a separation, and to reward the parent who is most cooperative and creative in finding solutions to the practical problems that inevitably arise in shared parenting arrangements.