Ottawa Men's Centre

Peter Roscoe's Research

                             Gender Bias in Family Law at the

                 Court of Appeal Ontario 2007

      Peter Karl Roscoe

    Apr 2006, Revised Sept 2007

      Part I                  Judicial Decisions on Family Law Cases

In this section family law decisions have been evaluated for individual appellate judges. Appeal issues have been classified into 7 general family categories. A single appeal may involve more than one issue and therefore receive multiple entries. It may also involve cross appeals by the opposing spouse. Costs refers to costs of the appeal. If costs of lower court rulings are a primary appeal issue they have been included in the category of other. Since the costs of the appeal represents a secondary discretionary ruling by the court, it has been given extended analysis in both magnitude and application. Summaries of the data can be found on pages 28. A full listing of the cases and decisions are given in appendixes A1 to A26 starting on page 58.

For Justice Abella, 53 family cases were available, and 51 of them had data on cost penalties. 21 appeals were innitiated by females and 32 appeals by males. 4 cross appeals were brought by women and 3 by men. The cases and their outcomes can be found in Appendix A1. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (58/87 x 100) 66.7 % chance of winning, and a man has a (11/107 x 100) 10.2 % % chance of winning when appearing before a panel with Justice Abella on it. On appeal issues alone a woman to has a (26/36 x 100) 72.2 % chance of winning, and a man has a (5/56 x 100) 8.9 % chance of winning. Success as decided by cost penalties assigned was 11.7 % in favor of men, 62.7 % in favor of females and divided 25.6 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 66.7 – 10.2 = 56.5 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 72.2 – 8.9 = 63.3 %

Cost Discrimination Index = % Female Wins - % Male Wins = 62.7 – 11.7 = 51.0 %

Female / Male Wins = 66.7 / 10.2 = 6.5

Win Index = ( Female Wins + Male Wins ) / 2 = ( 66.7 + 10.2) / 2 = 76.9 / 2 = 38.5 %

For Justice Feldman 52 family cases were available, and 51 of them had data on cost penalties. 23 appeals  were innitiated by women and 29 by men. 3 cross appeals were brought by women and 2 by men. The cases and their outcomes can be found in Appendix A2. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (57/78 x 100) 73.0 % chance of winning, and a man has a (18/102 x 100) 17.6 % % chance of winning when appearing before a panel with Justice Feldman on it. On appeal issues alone a woman to has a (21/27 x 100) 77.8 % chance of winning, and a man has a (12/51 x 100) 23.5 % chance of winning. Success as decided by cost penalties assigned was 11.6 % in favor of men, 70.5 % in favor of females and divided 17.9 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 73.0 – 17.6  = 55.4 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 77.8 – 23.5 = 54.3 %

Cost Discrimination Index = % Female Wins - % Male Wins = 70.5 – 11.6 = 58.9 %

Female / Male Wins = 73.0 / 17.6 = 4.1

Win Index = ( Female Wins + Male Wins ) / 2 = ( 73.0 + 17.6) / 2 = 90.6 / 2 = 45.3 %

For Justice Charron, 48 family cases were available, and 44 of them had data on cost penalties. 12 appeals were innitiated by females and 36 appeals by males. 3 cross appeals were brought by women. The cases and their outcomes can be found in Appendix A3. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (50/62 x 100) 80.6 % chance of winning, and a man has a (12/99 x 100) 12.1 % chance of winning when appearing before a panel with Justice Charron on it. On appeal issues alone a woman to has a (12/15 x 100) 80.0 % chance of winning, and a man has a (6/56 x 100) 10.7 % chance of winning. Success as decided by cost penalties assigned was 13.6 % in favor of men, 79.5 % in favor of females and divided 6.8 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 80.6 – 12.1 = 68.5 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 80.0 – 10.7 = 69.3 %

Cost Discrimination Index = % Female Wins - % Male Wins =79.5 – 10.7 = 68.3 %

Female / Male Wins = 80.6 / 12.1 = 6.7

Win Index = ( Female Wins + Male Wins ) / 2 = ( 80.6 + 12.1) / 2 = 92.7 / 2 = 46.4 %

For Justice Simmons 46 family cases were available, and all of them had data on cost penalties. 14 appeals were innitiated by females and 32 appeals by males. 3 cross appeals were brought by women. The cases and their outcomes can be found in Appendix A4. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (30/66 x 100) 45.8 % chance of winning, and a man has a (25/101x 100) 24.7 % chance of winning when appearing before a panel with Justice Simmons on it. On appeal issues alone a woman to has a (9/20 x 100) 45.0 % chance of winning, and a man has a (18/52 x 100) 34.6 % chance of winning. Success as decided by cost penalties assigned was 15.2 % in favor of men, 45.6 % in favor of females and divided 39.1 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 45.8 – 24.7 = 20.8 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 45.0 – 34.6 = 10.4 %

Cost Discrimination Index = % Female Wins - % Male Wins = 45.6 – 15.2 = 30.4 %

Female / Male Wins = 45.8 / 24.7 = 1.9

Win Index = ( Female Wins + Male Wins ) / 2 = ( 45.8 + 24.7) / 2 = 70.5 / 2 = 35.3 %

For Justice Lang 35 family cases were available, and 30 of them had data on cost penalties. 13 appeals were innitiated by females and 22 appeals by males. 2 cross appeals were brought by women. The cases and their outcomes can be found in Appendix A6. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (31/49 x 100) 63.2 % chance of winning, and a man has a (10/70 x100) 14.7 % % chance of winning when appearing before a panel with Justice Lang on it. On appeal issues alone a woman to has a (11/17 x 100) 64.7 % chance of winning, and a man has a (7/40 x 100) 17.5 % chance of winning. Success as decided by cost penalties assigned was 10.0 % in favor of men, 66.7 % in favor of females and divided 22.3 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 63.2 – 14.7 = 48.5 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 64.7 – 17.5 = 47.2 %

Cost Discrimination Index = % Female Wins - % Male Wins = 66.7 – 17.5 = 49.2 %

Female / Male Wins – 63.2 / 14.7 = 4.3

Win Index = ( Female Wins + Male Wins ) / 2 = ( 63.2 + 14.7 ) / 2 = 77.9 / 2 = 39.0 %

For Justice Weiler 50 family cases were available, and 46 of them had data on cost penalties. 17 appeals were innitiated by females and 33 appeals by males. 5 cross appeals were brought by women and 3 by men. The cases and their outcomes can be found in Appendix A6. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (51/72 x 100) 70.8 % chance of winning, and a man has a (15/143 x 100) 14.4 % % chance of winning when appearing before a panel with Justice Weiler on it. On appeal issues alone a woman to has a (20/26 x 100) 76.9 % chance of winning, and a man has a (15/63 x 100) 23.8 % chance of winning. Success as decided by cost penalties assigned was 2.2 % in favor of men, 69.6 % in favor of females and divided 28.2 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 70.8 – 14.4 = 56.4 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 76.9 – 23.8 = 53.1 %

Cost Discrimination Index = % Female Wins - % Male Wins = 69.6 – 2.2 = 67.4 %

Female to Male Wins = 70.8 / 14.4 = 4.9

Win Index = ( Female Wins + Male Wins ) / 2 = ( 70.8 + 14.4) / 2 = 85.2 / 2 = 42.6 %

For Justice McMurtry 38 family cases were available, and 37 of them had data on cost penalties. 12 appeals were innitiated by females and 26 appeals by males. 4 cross appeals were brought by women and 1 by a man. The cases and their outcomes can be found in Appendix A7 A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (33/58 x 100) 56.9 % chance of winning, and a man has a (21/86 x 100) 24.4 % % chance of winning when appearing before a panel with Justice McMurtry on it. On appeal issues alone a woman to has a (10/21 x 100) 47.6 % chance of winning, and a man has a (15/49 x 100) 30.6 % chance of winning. Success as decided by cost penalties assigned was 16.2 % in favor of men, 59.5 % in favor of females and divided 16.5 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 56.9 – 24.4 = 32.5 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 47.6 – 30.6 = 17.0 %

Cost Discrimination Index = % Female Wins - % Male Wins = 59.5 – 16.2 = 43.4 %

Female / Male Wins = 56.9 / 24.4 = 2.3

Win Index = ( Female Wins + Male Wins ) / 2 = ( 59.6 + 24.4) / 2 = 84.0 / 2 = 42.0 %

For Justice O’Connor 27 family cases were available, and all of them had data on cost penalties. 10 appeals were innitiated by females and 17 appeals by males. 3 cross appeals were brought by women and 2 by men The cases and their outcomes can be found in Appendix A8 A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (23/41 x 100) 56.1 % chance of winning, and a man has a (13/56 x 100) 23.2  % % chance of winning when appearing before a panel with Justice O’Connor on it. On appeal issues alone a woman to has a (9/14 x 100) 64.3 % chance of winning, and a man has a (7/29 x 100) 24.1 % chance of winning. Success as decided by cost penalties assigned was 22.2 % in favor of men, 51.9 % in favor of females and divided 25.9 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 56.1 – 23.2 = 32.9 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 64.3 – 24.1 = 40.2 %

Cost Discrimination Index = % Female Wins - % Male Wins = 51.9 – 22.2 = 29.7 %

Female / Male Wins = 56.1 / 23.2 = 2.4

Win Index = ( Female Wins + Male Wins ) / 2 = ( 56.1 + 23.2) / 2 = 79.3 / 2 = 39.7 %

For Justice Goudge 62 family cases were available, and 56 of them had data on cost penalties. 22 appeals were innitiated by females and 40 appeals by males. 2 cross appeals were brought by women. The cases and their outcomes can be found in Appendix A9. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (57/84 x 100) 67.9 % chance of winning, and a man has a (24/114 x 100) 21.0 % chance of winning when appearing before a panel with Justice Goudge on it. On appeal issues alone a woman to has a (22/27 x 100) 81.5 % chance of winning, and a man has a (17/58 x 100) 29.3 % chance of winning. Success as decided by cost penalties assigned was 12.5 % in favor of men, 60.7 % in favor of females and divided 26.8 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 67.9 – 21.0 = 46.9 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 81.5 – 29.3 = 52.2 %

Cost Discrimination Index = % Female Wins - % Male Wins = 60.7 – 12.5 = 48.2

Female / Male Wins = 67.9 / 21.0 = 3.2

Win Index = ( Female Wins + Male Wins ) / 2 = ( 67.9 + 21.0) / 2 = 88.9 / 2 = 44.5 %

For Justice Borins 38 family cases were available, and 35 of them had data on cost penalties. 18 appeals were innitiated by females and 20 appeals by males. 2 cross appeals were brought by men The cases and their outcomes can be found in Appendix A10. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (31/56 x 100) 55.4 % chance of winning, and a man has a (15/68 x 100) 22.0 % chance of winning when appearing before a panel with Justice Borins on it. On appeal issues alone a woman to has a (11/21 x 100) 52.4 % chance of winning, and a man has a (10/33 x 100) 30.3 % chance of winning. Success as decided by cost penalties assigned was 14.3 % in favor of men, 57.1 % in favor of females and divided 28.6 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 55.4 – 22.0 = 33.4 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 52.4 – 30.3 = 22.1 %

Cost Discrimination Index = % Female Wins - % Male Wins = 57.1 – 14.3 = 42.8 %

Female / Male Wins = 55.4 / 22.0 = 2.5

Win Index = ( Female Wins + Male Wins ) / 2 = ( 55.4 + 22.0) / 2 = 77.4 / 2 = 38.7 %

For Justice Rosenbrg 60 family cases were available, and 56 of them had data on cost penalties. 27 appeals were innitiated by females and 33 appeals by males. 5 cross appeals were brought by women and 3 by men The cases and their outcomes can be found in Appendix A11. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (58/95 x 100) 61.0 % chance of winning, and a man has a (23/106 x 100) 21.7 % chance of winning when appearing before a panel with Justice Rosenberg on it. On appeal issues alone a woman to has a (24/40 x 100) 60.0 % chance of winning, and a man has a (16/55 x 100) 29.1 % chance of winning.  Success as decided by cost penalties assigned was 14.3 % in favor of men, 60.7 % in favor of females and divided 25.0 % of the time.

Discrimination Index = % Female Wins - % Male Wins = 61.0 – 21.7 = 39.3 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 60.0 – 29.1 = 30.9 %

Cost Discrimination Index = % Female Wins - % Male Wins = 60.7 – 14.3 = 46.4 %

Female / Male Wins = 61.0 / 21.7 = 2.8

Win Index = ( Female Wins + Male Wins ) / 2 = ( 61.0 + 21.7 ) / 2 = 82.7 / 2 = 41.4 %

For Justice Armstrong 44 family cases were available, and 40 of them had data on cost penalties. 18 appeals were innitiated by females and 26 appeals by males. 1 cross appeals was brought by a woman and 1 by a man The cases and their outcomes can be found in Appendix A12. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (34/65 x 100) 52.3 % chance of winning, and a man has a (21/76 x 100) 27.6 % chance of winning when appearing before a panel with Justice Armstrong on it. On appeal issues alone a woman to has a (13/25 x 100) 52.0 % chance of winning, and a man has a (12/36 x 100) 33.3 % chance of winning. Success as decided by cost penalties assigned was 13.2 % in favor of men, 52.5 % in favor of females and divided 27.5 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 52.3 – 27.6 = 24.7 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 52.0 – 33.3 = 18.7 %

Cost Discrimination Index = % Female Wins - % Male Wins = 52.5 – 13.2 = 39.3 %

Female / Male Wins = 52.3 / 27.6 = 1.9

Win Index = ( Female Wins + Male Wins ) / 2 = ( 52.3 + 27.6) / 2 = 79.9 / 2 = 40.0 %

For Justice Moldaver 51 family cases were available, and 48 of them had data on cost penalties. 22 appeals were innitiated by females and 29 appeals by males. 5 cross appeals were brought by women and 2 by men. The cases and their outcomes can be found in Appendix A13. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (49/82 x 100) 59.7 % chance of winning, and a man has a (14/100 x 100) 14.0 % chance of winning when appearing before a panel with Justice Moldaver on it. On appeal issues alone a woman to has a (15/34 x 100) 44.1 % chance of winning, and a man has a (10/50 x 100) 20.0 % chance of winning. Success as decided by cost penalties assigned was 8.3 % in favor of men, 68.8 % in favor of females and divided 22.9 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 59.7 – 14.0 = 45.7

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 44.1 – 20.0 = 24.1 %

Cost Discrimination Index = % Female Wins - % Male Wins = 68.8 – 8.3 = 60.5 %

Female / Male Wins = 59.7 / 14.0 = 4.3

Win Index = ( Female Wins + Male Wins ) / 2 = ( 59.7 + 14.0) / 2 = 73.7 / 2 = 36.9 %

For Justice Macpherson 55 family cases were available, and 53 of them had data on cost penalties. 15 appeals were innitiated by females and 40 appeals by males. 4 cross appeals were brought by women. The cases and their outcomes can be found in Appendix A14. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (56/79 x 100) 70.9 % chance of winning, and a man has a (17/118 x 100) 14.4 % chance of winning when appearing before a panel with Justice Macpherson on it. On appeal issues alone a woman to has a (14/26 x 100) 53.8 % chance of winning, and a man has a (11/65 x 100) 16.9 % chance of winning. Success as decided by cost penalties assigned was 11.3 % in favor of men, 79.2 % in favor of females and divided 9.5 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 70.9 – 14.4 = 56.5 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 53.8 – 16.9 = 36.9 %

Cost Discrimination Index = % Female Wins - % Male Wins = 79.2 – 11.3 = 67.9 %

Female / Male Wins = 70.9 / 14.4 = 4.9

Win Index = ( Female Wins + Male Wins ) / 2 = ( 70.9 + 14.4) / 2 = 85.3 / 2 = 42.7 %

For Justice Gillese 40 family cases were available, and 36 of them had data on cost penalties. 17 appeals were innitiated by females and 23 appeals by males. 3 cross appeals were brought by women and13 by a man. The cases and their outcomes can be found in Appendix A15. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (43/63 x 100) 68.3 % chance of winning, and a man has a (27/80 x 100) 27.5 % chance of winning when appearing before a panel with Justice Gilese on it. On appeal issues alone a woman to has a (19/26 x 100) 73.1 % chance of winning, and a man has a (24/50 x 100) 48.0 % chance of winning. Success as decided by cost penalties assigned was 16.7 % in favor of men, 63.9 % in favor of females and divided 19.4 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 68.3 – 27.5 = 40.8 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 73.1 – 48.0 = 25.1 %

Cost Discrimination Index = % Female Wins - % Male Wins = 63.9 – 16.7 = 47.2 %

Female / Male Wins = 68.3 / 27.5 = 2.5

Win Index = ( Female Wins + Male Wins ) / 2 = ( 68.3 + 27.5) / 2 = 95.8 / 2 = 47.9 %

For Justice Juriansz 32 family cases were available, and 31 of them had data on cost penalties. 13 appeals were innitiated by females and 19 appeals by males. 1 cross appeal was brought by a woman. The cases and their outcomes can be found in Appendix A16. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (28/48 x 100) 58.3 % chance of winning, and a man has a (13/56 x 100) 23.2 % chance of winning when appearing before a panel with Justice Juriansz on it. On appeal issues alone a woman to has a (10/17 x 100) 58.8 % chance of winning, and a man has a (7/25 x 100) 28.0 % chance of winning. Success as decided by cost penalties assigned was 19.3 % in favor of men, 58.1 % in favor of females and divided 22.6 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 58.3 – 23.2 = 35.1%

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 58.8 – 28.0 = 30.8 %

Cost Discrimination Index = % Female Wins - % Male Wins = 58.1 – 19.3 = 38.8 %

Female / Male Wins = 58.3 / 23.2 = 2.5

Win Index = ( Female Wins + Male Wins ) / 2 = ( 58.3 + 23.2) / 2 = 81.5 / 2 = 40.8 %

For Justice Blair 35 family cases were available, and 32 of them had data on cost penalties. 13 appeals were innitiated by females and 22 appeals by males. 2 cross appeals were brought by women and 2 by men The cases and their outcomes can be found in Appendix A 17. A summary of the decisions is as follows

Summarized in percentage terms

It can be concluded that in the overall result including costs, a woman has a (32/50 x 100) 64.0 % chance of winning, and a man has a (10/72 x 100) 13.9 % % chance of winning when appearing before a panel with Justice Blair on it. On appeal issues alone a woman to has a (12/19 x 100) 63.2 % chance of winning, and a man has a (5/41 x 100) 12.2 % chance of winning. Success as decided by cost penalties assigned was 15.6 % in favor of men, 65.6 % in favor of females and divided 18.8 % of the time.

Overall Discrimination Index = % Female Wins - % Male Wins = 64.0 – 13.9 = 50.1 %

Appeal Issue Discrimination Index = % Female Wins - % Male Wins = 63.2 – 12.2 = 51.0 %

Cost Discrimination Index = % Female Wins - % Male Wins = 65.6 – 15.6 = 50.0 %

Female / Male Wins = 64.0 / 13.9 = 4.6

Win Index = ( Female Wins + Male Wins ) / 2 = ( 64.0 + 13.9) / 2 = 77.9 / 2 = 39.0 %

For Justice Sharpe 42 family cases were available, and 39 of them had data on cost penalties. 15 appeals were innitiated by females and 27 appeals by males. 3 cross appeals were brought by women and 1 by a man. The cases and their outcomes can be found in Appendix A 18. A summary of the decisions is as follows

Summarized in percentage terms