This is a common question that many people have about the family law court system in Canada. It is not uncommon to hear tales about how mothers “win” in family court and fathers lose. It can often be disheartening for men involved in the difficult process of separation and divorce. So is this really true?
As with many complex legal questions the answer is both “yes” and “no.”
There is no presumption in favour of mothers in any of the pieces of family law legislation. In fact, many of the laws in Canada expressly declare that both mothers and fathers have an equal claim. After all, our system of governance is built on a system of fairness and equality for all and our laws attempt to reflect that.
So if this is the case, then why does it seem that men get the short end of the stick in so many custody decisions?
Often, this is because of prevailing assumptions within society about the role of men both as fathers and providers. Despite the fact that more than ever, men are required to share the responsibility of caregiving and providing equally with their partners, we have not yet fully shaken the antiquated notion that men are breadwinners and women are caregivers.
When it comes to custody and access, the law is deceptively simple. It asks only one question of judges: “What is in the best interests of the children.” A judge must address every case of custody and access on a case-by-case basis and give his or her decision based on this one question. Because this question is so broad, a judge cannot help but include some of his or her personal bias about the roles of parents in a child’s life. Decisions will often vary widely on a judge-by-judge basis depending on how a judge views the role of a father in a child’s upbringing.
More often than not, when a claim is started a mother will claim that they were responsible for the care and upbringing of a child in their early years. The mother will state that she sacrificed career advancement opportunities to look after a child and that the child has a special connection with them. This is a difficult claim for many men to refute, since it is so engrained in our cultures understanding of the roles of mothers and fathers. It is very easy for a judge to assume that since the mother’s traditional role is that of nurturing children that placing the child in the mother’s care will be in their best interest.
Fathers who are actively involved in their child’s upbringing often feel they are struggling against an uphill battle to prove this fact, when we are conditioned by social gender roles to believe that this is not the case.
The good news is that things seem to be changing. As the role of the father expands beyond that of the breadwinner, many groups are advocating for a presumption of “joint custody” in Canadian Family Law legislation. This means that while a judge may still order sole custody in favour of a mother, there must be a compelling reason why an order for joint custody will not work. This recognizes that it is in the best interests of children to have two loving parents equally involved in their lives.
It is also heartening to see that while the courts have not been overly progressive in their views of the changing roles of mothers and fathers, these opinions are changing elsewhere. Often independent assessors, or the government appointed “Office of the Children’s Lawyer” will provide an expert report and make a recommendation in favour of joint custody. While it is important to remember that an assessor will not always recommend joint custody, their ability to observe the interactions between the parents and children will often assist them in seeing the value of a good father’s presence in a child’s life. While these recommendations are not legally binding, Judges often give them considerable weight as “expert evidence” concerning the best interests of the child since the expert assessor was able to witness the interactions between father and child first hand.
At Dad Law we are committed to protecting the rights of fathers. While it can sometimes feel as though you are fighting an uphill battle, it is a battle that can be won through careful planning and persistence. We are committed to showing that having an actively involved father is in a child’s best interests, and that fathers play an integral role in a child’s upbringing. Good fathers should not have to settle for being latchkey “weekend dads.” Our law has no gender bias, so why should our courts?
