Barbara Kay on how courts disenfranchise fathers

Posted: June 17, 2008, 5:00 PM by Marni Soupcoff

Barbara Kay

I once sued a horse dealer for fraud. The evidence in hand was irrefutable, so justice-wise the case was a lock. Nevertheless, my world-weary lawyer, familiar with the presiding judge’s record, told me I would likely torpedo my case on the witness stand. Stung, I protested I was truthful and knew my case backwards.

Precisely, he replied. This judge is a small town guy. You’re too urban and obviously competent and articulate for his comfort. He’ll assume you could have looked out for your interests. The defendant will play up her humble rural working life (she did), and he’ll be sympathetic to her.

It was as he predicted, and I lost on a meaningless legal technicality.

One lesson of many I took from this misadventure — the main one being that justice and judgments are two separate animals — is that although a judge must be knowledgeable in the law, he may also be a social idiot, with zero interest or ability in reading human behaviour, as well as blind to his own bias (the furious blushes that accompanied my opponent’s lies, so outrageous they drew spontaneous gasps of incredulity from onlookers familiar with the facts, were ignored).

My case only involved money. Rewind my little vignette and play it out in family court where the right to parent one’s own children is at stake. In 90% of disputed custody cases mothers walk away with “primary care” (in effect sole custody) of their children because, deservedly or not, judges feel sorry for them and find a technical or legal opening to issue the judgment they have already made in their hearts.

The introduction to a book presently nearing completion, called Deadbeat Judges: How Courts Disenfranchise Fathers, outlines the triple cause of the syndrome. In the absence of constitutional protection of parental rights, and masking their power-grab under the guise of “best interests of the child,” courts have usurped disputatious parents’ natural right to equal guardianship of their children. Add to that judges’ superannuated impulse toward chivalry for the perceived underdog — virtually always the mother in their eyes — bolstered by a legal culture dominated by third-wave, anti-father feminism.

The result is a perfect storm favouring judicial activism for mothers: “Our Lords and 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.”

I hasten to add that the eloquent author of Deadbeat Judges, Grant Brown, is particularly qualified to write this exposé because, unlike the usual run of fathers’ rights book authors, he has no personal axe to grind. He has never married and has no children, so cannot be called a “bitter loser,” the usual fallback position of unsympathetic critics challenged by former litigants’ unpalatable truths about the family law system.

Brown’s indignation springs from his education in philosophy and ethics, and his experience as a family law lawyer, a profession he has recently abandoned because of the entire divorce industry’s inherent gender iniquities.

Brown has seen it all: judges who aren’t up to date on the facts of domestic violence, and so base rulings on myths and stereotypes; a “disconcerting proportion” of judges who don’t know the law they are supposed to be applying or don’t care to apply it when they do know; judges who ignore evidence, affidavits and expert testimony that favour the father; judges who defer “difficult” (i.e., mother-unfriendly) decisions until it is too late; judges swift to punish fathers for support payment lapses, but loath to impose consequences on mothers who flout access orders.

The six case histories Brown deconstructs are his own, therefore factually reliable, and they will make the blood of any fair-minded reader boil. But while the names of the disputants are altered to protect the children, the actual identities of the case judges are revealed. Since it is well nigh impossible to expose judges’ negligence and unprofessional conduct in any other democratic way, it is time, Brown feels, that demonstrably biased judges face accountability in the court of public opinion.

And public opinion, wherever it is concerned with real gender equity and the right of children to love and be loved by both their parents (in the absence of abuse), will find in these pages a damning indictment of Canada’s family law system.

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