March 5, 2001
A B.C. judge rules that prostitution is no barrier to Child Custodyby KELLY JANE TORRANCE
A couple are fighting for custody of their six-year-old son. The mother is what is politely referred to as a "sex-trade worker." She accused the father of violence, but the judge found no merit in her accusations. A no-brainer? It was to the judge, who awarded the woman custody. There is no longer any reason, he argued, for a "fallen woman" not be a custodial parent.
B.C. Supreme Court Justice Ian Drost handed down his decision in January The mother is a 29-year-old Chilliwack-area woman (who may not be named) who makes $10,000 a month operating a massage parlour and a pornographic Web site, on which she posts nude photographs of herself. She admitted that she has performed sexual acts for money, although not sexual intercourse, and has previously worked as an escort agency prostitute. The couple's other son, eight, is in the custody of his maternal grandmother. The mother gained custody of the six-year-old at the time of separation, when she worked part-time as a ferry deckhand.
"The question is, should these activities bar her from continuing as the custodial parent?" Justice Drost asked rhetorically in his judgment. He thought not, although he added, "I do not want this to be taken as signifying my approval of what [she] does for a living." But while he gave her custody, he seemed to acknowledge the effect his decision might have on the children, who think their mother works in a doctor's office. "I expect that as they get older, the likelihood that they will learn what she really does, and be adversely affected by that knowledge, greatly increases," the judge wrote.
"It's hard not to see it as a reflection of our general attitude that what you do, morally speaking, is your own business as long as it doesn't harm anyone else," comments William Gairdner, author of The War Against the Family. He notes that we used to agree with John Donne's argument that "No man is an island unto himself." But, particularly since John Stuart Mill, even conservative-minded people have changed their views. "The whole western world has been seduced by the idea we can sin privately and that it has no effect on other people," Mr. Gairdner contends.
Mr. Gairdner sees hope for the Supreme Court of Canada with its new chief justice, Beverley McLachlin, who has tempered the rights agenda espoused by her predecessor Antonio Lamer. He notes in his about-to-be-published The Trouble with Democracy that Mr. Justice Lamer said that the individual's interests should trump the interests of society. "It's the first time someone in such an exalted position said that in this country," Mr. Gairdner remarks.
Victoria lawyer Doug Christie was more successful in a similar case three years ago. Widely known as the "escort granny" case, Mr. Christie represented a Saanich mother who refused to let her daughter see the woman's mother, who ran an escort agency in her home. The grandmother originally won the case, but the mother won on appeal to the B.C. Supreme Court and again when the grandmother went to the Court of Appeal.
Mr. Christie is puzzled by the latest case. "I've become very reluctant to get involved in family law matters because I can't make much sense of it. It's very heart-rending to me personally," he says. "The courts seem to want to avoid controversy in moral issues by staying away from any moral arguments and deciding on some other basis." He adds, "I also know that fathers have an uphill battle in the courts when it comes to custody or maintenance." In 1996, fathers were the head of only 7.3% of single-parent families. Three-quarters of sole custody decisions award custody to mothers; only 12% of sole custody decisions are in favour of fathers.
"I think that the whole issue of custody is unfortunately often not handled well," says Robert Glossop, executive director of programs and research at Ottawa's Vanier Institute of the Family. "There are unfortunately no cut-and-dried rules that can guide the courts in what is in the best interests of the kids." Divorce is often an adversarial situation between two people who use their children as pawns. Mr. Glossop emphasizes the importance of supporting families early on. "They need help recognizing the profound implications of their actions on children," he maintains. "By the time things get to the courts, the game is often lost."