Accountability, Judicial discretion and equal parenting, a response to the Thomas Cromwell Supreme Court report on Family Law
By Glenn Cheriton
Those parents who go through Canada`s family court system are generally very dissatisfied. A common complaint is that the system is “corrupt”, by which parents mean they feel it is arbitrary, unfair and that they seem to have lost their children for no apparent reason. This raises some of the following questions:
In family court do judges give clear reasoned bases for their decisions that the people themselves can understand?
Are judges in family courts required to detail the evidence and reasons for judgment? Who requires this, and is this effective?
Other than appeals, what mechanisms are there for holding judges accountable if they decide on the basis of bias, sexism or anti-father prejudice?
Our surveys show that a large majority (70-80%) of the Canadian public believe that family courts are unfair and biased against fathers, and need to be reformed. The perception of family law courts and lawyers is generally accepted as the most negative of all branches of the law. If we need to maintain public confidence in the legal system, how can the system be reformed so that there is not a “reasonable suspicion of bias”.
Judges (including Ontario Chief Justice Warren Winkler and Supreme Court judge Beverley McLaughlin) have stated that civil courts (family courts) are beyond the means of average Canadians and recognized the wide scale dissatisfactions with the process and outcomes. Such reforms have been proposes and “implemented” sporadically over 40+ years, yet have resulted in no real changes from the standpoint of children and parents.
Section 28 of the Charter of Rights and Freedoms guarantees “equal protection and benefit of the law to male and female persons” (notwithstanding all other sections of the charter) but courts essentially disregard the Charter in family law cases. How can this be justified in a society claiming to be “free and democratic”?
Government funding for women’s services, legal education, and child tax benefits are generally denied to men and fathers. This gives women a huge advantage in family courts. How can family courts provide due process and natural justice in the shadow of government preferentialist biased services and funding?
Supreme Court Chief Justice Beverly McLaughlin: “Judges are accountable. They are accountable to the Canadian public…” Parent advocates respectfully disagree.
Judicial Independence, “that the judge must not be an ally or supporter of one of the contending parties”. 13 P. Hogg, Constitutional Law of Canada (Toronto: Thomson, Carswell, 1997), Looseleaf at 7-8
Yet, here is Supreme Court Justice McLaughlin on announcing the Thomas Cromwell report on civil law, “Cuts to family legal aid have a disproportionate effect on women and children…” suggesting that she, or the study is already biased in favour of women, which is the accusation against the family court system and judges most often claimed by fathers.
Again, from the Cromwell report on civil law, “Family law disputes affect more Canadians than any other single area of law.” This is true. It is also true that there is more dissatisfaction here than any other area of law. This area produces more family poverty, more suicides, more social dysfunction, more bitterness and disillusion by far than any other. This is the area of the law where every single one of the 48 recommendations of the Joint Senate-Commons Committee on child Custody and Access in 1998 have been blocked by the legal profession. Thus, while there is almost universal agreement that the current system needs a “radical overhaul”, not a single significant change has occurred at the federal or provincial levels.
When two parents separate, what legal questions are being determined by the need to go to court to decide whether the child should continue to have a relationship with the other parent, and why is the child almost never represented or heard from, if the child has an interest in the outcome? How can courts claim to act in the “best interests of the child” if this is undefined, and the child is almost always never represented nor heard from?
In the “normal” or average divorce, the child’s relationship with one of their parents is often pretty effectively and permanently severed, with neither the child nor the affected parent desiring it. Often this is done by the courts with no more explanation than, “best interests of the child” which many parents feel is more a cover-up than actual explanation. About 90% of the time the father loses custody, while the court says it “awards” custody to the mother. Many cases are decided, “in the shadow of the law” which in practice means that one parent runs out of money, or is told that he (and it is overwhelmingly the father) does not have a chance at custody. The way this looks to fathers is often that they have been bullied out of their children in order to maximize profits for the legal profession.
Beverly McLaughlin: “The challenge is to develop mechanisms of accountability that do not undermine judicial independence.” The solution that Australia found, after several attempts at making joint custody the default outcome, and having this undermined by the legal profession, was to largely remove the legal profession and judges from the process, with parent co-ordinators and parenting time agreements made by the parents themselves. Canada may need to follow a similar path of moving divorce processes out of family law and into a system which excludes the legal profession.
Here is the comment from the president of the Canadian Equal Parenting Council (CEPC) on parental rights:
CEPC has been promoting the idea of a balance of rights and responsibilities for parents since 2004. Our position is in direct contradiction to former federal Justice Minister Martin Cauchon who stated in 2003 that “in regards to their children, parents have no rights, only responsibilities.” In spite of CEPC appeals to subsequent ministers of justice, what appears to be a policy of extermination of historically recognized rights by the federal government has not been withdrawn or changed. No other group in recent history has had their rights so publicly denied, abrogated and removed as parents.
It is CEPC position that such denial of rights violates the Charter of Rights and Freedoms, Canada’s commitments in various UN Conventions and the Bill of Rights.
If you have only responsibilities, but no rights, then you are a slave. To compare, written into the divorce act is the provision that judges and lawyers cannot be held responsible for their decisions in the family court system, i.e. they have rights to make decisions regarding the children of parents, but no responsibility for the outcomes. If you have rights but no responsibilities, then you are a tyrant.
The family law system is, as Eric Tarkington points out, a feudal system, with judges acting like feudal lords, able to take your children away at any time, for virtually any reason.
If parental rights are human rights, then the family courts are depriving parents of rights without due process of law. Equal parenting reforms are like a “Magna Carta” to restrain the feudalists from violating basic human rights of parents.
Taking a person’s child is such a terrible punishment that due process must include all of the protections we grant to alleged criminals, that is, the presumption of innocence (which would be equalled by a presumption of parental fitness), the right to confront accusers, the right to counsel (and if a parent cannot afford counsel, government must provide competent counsel), and fair and consistent rules of evidence and procedure.
That is why the CEPC is seeking reform of law and procedure so that no parent loses a child without due process, and a presumption that both parents remain as equals in the child’s life unless proven unfit to a clear and consistent standard.
The power differential is so large and unfair between parents and the profiteering legal profession, their co-conspirators, state actors & their agents – judges that only a strong and high standard for parental rights can stand against the abuse of power by the family law industry.
The human rights argument for parental equality is only one among many, perhaps not the most important one, but it is one that tells us much about the draconian power that family courts and state bureaucracies want to maintain over our families.
We call upon all parents and their supporters to spread the message that “parent rights are human rights”. Write to your political representatives and tell them. Write to the media and tell them. Call in to radio shows.
Blog it. Tweet it. Put in on your facebook page.
“Parent rights are human rights.”
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