12 April 1997, pp. D1-2
Oh Dad, poor Dad
© Donna Laframboise, Globe and Mail
When his wife of 10 years died of ovarian cancer in 1989, Patrick Dougan felt the bottom drop out of his world. The couple's children - aged five and one - became his comfort, his sole reason to get out of bed in the morning. Bereft, vulnerable and still numb, the 37-year-old Metro Toronto public-works employee met Deborah Moisey not long after his wife's death and began living with her in 1990. They married two years later. By early 1996 they had decided their relationship wasn't working. Aware that his children were emotionally attached to his second wife (who had not adopted them), Mr. Dougan agreed to share custody with her. According to a document they drew up privately and both signed, the children would live with each adult in alternating two-week cycles. Holidays would be "shared equally and rotated yearly."
But Deborah Dougan was receiving legal advice from Ronald Zaldin, a family law lawyer who had represented the wife in an infamous divorce case, featured in a Toronto Life article called "The Divorce From Hell." In March, 1996, Mr. Zaldin filed divorce papers on behalf of Ms. Dougan, in which she sought sole custody of the children. Mr. Zaldin then filed an "ex parte" court motion alleging that Mr. Dougan had a drinking problem and had "grown increasingly non-communicative and verbally abusive" to Ms. Dougan. On the spot, Mr. Justice H. S. LaForme awarded sole custody of Mr. Dougan's biological children to their step-mother.
Intended for use in emergency situations, an ex parte motion is presented in court without the opposing side receiving notice of what is transpiring. Mr. Dougan had no way of knowing custody of his children would be considered by a judge that day. He was given no opportunity to dispute the allegations against him. No independent investigation had been conducted and no corroboration was proffered.
Mr. Dougan was served with the papers that evening in front of his 12-year-old son. "I was shocked. I couldn't understand it. I had thought we were going to work it out on our own. There was nothing then that I could really do except go out and get myself a lawyer," he says.
And so began Mr. Dougan's experience as a divorcing father. For the past year, he has been denied the right to live under the same roof with his children, whom he sees every second weekend and for a few hours during each week. He has been ordered to pay $1,200 per month in child support to the woman who went behind his back to take his offspring from him, and who he says has falsely accused him. He has been forced to sell his house, exhausted his savings, is in debt because of his legal bills and has been treated rudely by the courts.
Deborah Dougan has custody of her ex-husband's children because in March, 1996, she secured an "interim interim" custody order. Mr. Dougan had the right to hire his own lawyer, dispute the allegations and have the custody order overturned, but as Mr. Zaldin says: "You need a miracle almost to reverse the interim, interim custody." If someone loses at that first stage, he says, custody has virtually been decided.
Despite the efforts of two different lawyers acting on his behalf, Mr. Dougan knows this only too well. He is among a growing number of men who have discovered that, in the event of a divorce and child custody dispute, the deck is stacked against them.
Generally speaking, it is true that divorce leads to worse economic hardship for women than it does for men. It's also true that domestic violence is a grim reality in too many homes. There are men out there who abandon their children without a thought, and who fail to pay child support even though they can well afford it.
But while divorcing men have an advantage over women because they are usually able to afford higher-priced legal help, they are also at a disadvantage. Fathers are far less likely to be awarded custody, they are more likely to be punished for violating court orders than their ex-wives, they are more vulnerable to being falsely accused of abuse, and they are often presumed guilty once such an allegation is made.
The plight of men like Patrick Dougan illustrates a bias that is deeply entrenched in our divorce laws, one that has grave implications for men, women and especially children.
According to Statistics Canada, in 1994, Canadian courts made nearly 50,000 child-custody orders. Fathers were awarded some form of custody (either joint or sole) in only 30 per cent of these. Even when parents applied mutually for joint custody, judges still gave sole custody to the mother 62 per cent of the time (in 2,371 of 3,829 cases).
Edward Kruk, a professor of social work at the University of British Columbia, conducted a two-country (Britain and Canada) study in the early 1990s on how divorce affects fathers. He concluded they are "judicially, culturally and legislatively disadvantaged on the basis of gender" when a marriage breaks down.
It's often assumed that non-custodial fathers are disinterested in their children and undistressed by their absence. But Professor Kruk says the reality is quite different. After losing daily contact with their offspring, the fathers in his study passed through a grieving process similar to that felt by parents whose child has died. "Fifty-five per cent of fathers reported new physical health problems," says Prof. Kruk, "while 61 per cent described mental-health difficulties they had not experienced prior to the divorce." (Other studies indicate that divorced men are nine times more likely to be admitted to psychiatric hospitals, are at higher risk of suicide, and are twice as likely to be involved in automobile accidents during the six months leading up to and the six months following the divorce.)
Prof. Kruk's most startling discovery was that the fathers most likely to disappear from their children's lives over time were ones who had previously had the highest levels of involvement with them. Responding to feminism's demand that they assume more responsibility for child care, a new generation of fathers has paced the floor with colicky babies, changed diapers and prepared meals.
For them, intermittent and all-too-brief post-divorce "visits" with their children bear no resemblance to their concept of fatherhood. The pain of frequent partings, the fact that their ex-spouses often discourage ongoing contact, and the knowledge that any new men in their ex-spouses' lives will enjoy more of their children's company than they can ever hope to, becomes too much to bear.
As a result, he says, they drift away, often convincing themselves that they are minimizing conflict in their children's lives.
But a growing body of empirical data says the bleak prognosis for children of divorce - significantly higher rates of mental illness, criminal behaviour, teenage pregnancy and poor academic achievement - isn't so much linked to divorce itself, as to whether kids maintain meaningful relationships with both parents afterward. Canada is years behind Britain and some U.S. states in acknowledging that the practice of awarding custody primarily to one parent is bad for everyone: children, fathers - and overburdened divorced mothers.
In 1987, Washington State passed legislation affirming that children need frequent, continuing contact with both parents following divorce. Couples are required to work out a detailed "parenting plan" that the court then audits and approves. "The key for children," says Prof. Kruk, "is some kind of post-divorce parenting arrangement that attempts to approximate, as closely as possible, the parent-child relationships in the original two-parent home."
One of the strengths of the Washington parenting-plan approach is that it is flexible and takes into consideration the reality of people's lives. Canadian courts still don't differentiate between families organized along traditional lines (in which the mother cares for the children, while the father earns income) and those in which men have been doing more hands-on parenting. Even though in recent years large numbers of men have been intensely involved with their kids from birth onward, custody decisions have changed little since the early seventies.
From this perspective, Bill C-41, the federal government's amendments to the Divorce Act in February, was a lost opportunity of mammoth proportions. At the end of the millenium, a full decade after Washington embraced
progressive thinking on such matters, Canada has enacted new legislation that reinforces old stereotypes. Central to Bill C-41 is the assumption that, after divorce, one parent will be the caregiver while the other's main contribution will be financial.
Although Bill C-41 introduced harsh penalties for parents (usually fathers) who violate court-orders by failing to pay child support, it ignored the problem of parents (usually mothers) who violate court orders by denying ex-spouses access to their children.
Marina Forbister is a Calgary chartered accountant and president of the Equitable Child Maintenance and Access Society, an Alberta non-custodial parents' lobby group representing 1,500 families. Her spouse is a non-custodial father whose son - we'll call him "Robby" - lives with his mother in Regina. Ms. Forbister says the difficulties she and her spouse have experienced getting access to the boy are not uncommon; many members of her group have similar tales to tell.
Ms. Forbister says she and the boy's father have driven to Saskatchewan only to discover that Robby's mother had left town with him. "We've never had him for Christmas, even though the court order says his father is to get him for half the holidays. We've never had him for a major holiday." The police - who insist denial of access is a "family matter" that should be sorted out by lawyers - are no help. Ms. Forbister tells of one police officer who said to them: "You seem like a nice couple. Go back home and forget you have a son in Regina."
Paul Pellman is a Toronto family-law specialist who has been in practice for 17 years. He has worked as a prosecutor for the Children's Aid Soiety and currently represents an equal number of male and female clients. Mr. Pellman says "there's no question" access is an ongoing problem for non-custodial parents. "If I was a judge, I would be putting people in jail," he says. "In my opinion, if anybody breaches court orders, they should go to jail - particularly when it affects a child. I can't tell you how many clients I've had in my office who appear to be very decent fathers who have no relationship with their kids. [They've had] access problems and they finally say, 'piss on it, I've given up.' "
Mr. Pellman speaks with admiration of the approach adopted by Mr. Justice Marc Labrosse, now a member of the Ontario Court of Appeal. "Labrosse used to say, 'Okay, I find the woman in contempt. I'm going to put her in jail next week, but I'm going to adjourn this a week so we can see if access takes place this weekend.' In every case I ever had with him, the woman complied with access and the problem was solved. I loved that no-nonsense approach."
The system's anti-male bias is also an issue in allegations of abuse. In our understandable desire to take domestic violence seriously, we seem to have forgotten one of the fundamental principles of a civilized society: Accusations are not proof. Because Deborah Dougan is a woman, she was assumed to be telling the truth when she accused Mr. Dougan of verbal abuse. For more than a year, the justice system has made no attempt to establish his guilt - it has simply presumed it.
But it would be naive to think that unscrupulous individuals don't try to manipulate domestic violence policies to their advantage. Heidi Nabert, a Toronto freelance graphic designer who is now a member of a group called Fathers' Resources International, tells of consulting a lawyer in 1991 prior to filing for divorce: "The lawyer's response to me, and this is precisely what he said, was, 'there's no reason for you to leave [your home]. Can you get him to hit you?'" When a shocked Ms. Nabert replied that her husband of 17 years had never behaved violently, the lawyer was undeterred. Nabert continues, "He said to me, 'you know, if you do that, we can have him forcibly removed from the home. And you're more than likely guaranteed some form of spousal support.'"
Mr. Pellman says he sees at least one case a month in which people are making use of the criminal law to assist them with their family-law problems. "It's very hard to kick a father out of a home - unless there has been a criminal charge," he says. "And most dads realize that when a marriage is over, in order to protect their rights to having a relationship with their children, they ought not to simply leave the home. So they stay." This can lead one party to seek unwarranted criminal charges against another to get them out of the home immediately, says Mr. Pellman. "You spend a night in jail almost automatically. And your bail conditions restrict you from ever attending at the home again except to get your goods. So it's an easy way to kick somebody out."
He also says the definition of "abuse" is being stretched so thin that he knows of one man who has been charged with assault for allegedly spitting on his wife. "I know spitting is bad, but spitting is enough to get a guy out of the house?"
For her part, Ms. Forbister talks about the lengths she and her spouse must go to to protect themselves from persistent abuse allegations made by Robby's mother. Before returning Robby to his mother [in December], she says, "we took him to a doctor in Regina - this was under police directives to do this - and had him examined: for bruises, for sexual abuse. This is where it's got to. This is very common. Anyway, we had a written doctor's report. Four days later, I was accused of choking him.
"[His mother said] he had bruises around his neck. Well, we had a doctor's report, otherwise I would have been in court."
Complicating abuse allegations (which are usually brought by women against men) is the fact that perjury is
widespread in affidavits filed in divorce proceedings. In a 1995 speech on ethics in family law, Ontario Judge Mary Lou Benotto said that human beings find it "far easier to lie on paper than in the witness box," and that "it is widely acknowledged [that] perjury is rampant and, moreover, goes unpunished" in affidavits, despite the fact they are signed oaths. Mr. Pellman refers to these documents as "screenplays" produced by lawyers - some of whom "are very good at preparing affidavits that make the biggest scoundrel look like a marvellous person and vice versa."
In recent years, the conditions faced by frustrated fathers have led to the formation of dozens of men's groups across the country. Many of these organizations are run by troubled individuals who do their cause more harm than good.
They talk of "conspiracies," "atrocities," "feminazis" and "gulags." They send out press releases saying they've asked Fidel Castro to raise fathers' rights issues at meetings with Foreign Affairs Minister Lloyd Axworthy.
On the other hand, moderate, responsible groups do exist. A 1995 editorial in a newsletter published by Single Fathers of Niagara, for instance, tells readers: "Remember our fight is not against women or mothers...Women are entitled to every freedom and privilege due. I just cannot believe that they have to gain it by stripping me of mine." In effect, these men are asking why, when a woman receives an unwelcome pinch on the derriere, our society takes the matter seriously, yet few people care that loving fathers are being deprived of contact with children they brought into the world.
Despite the bad reputation of some men's groups, Ms. Forbister believes the non-custodial parents' movement has made significant progress in the past year: "I think part of it is because there are women involved. People do not care about fathers' rights. And our focus isn't fathers' rights, it's children's rights. Children have the right to know both their parents."
She says, "I have a son [from her first marriage]. I don't want to, in 20 years, not see my grandchildren because there was something that I could have done that I didn't do." Ms. Forbister calls herself a feminist. "I want equality - but I don't want equality on the backs of someone else."
Worst of all, children's futures are being decided by an adversarial, back-logged, and often ill-informed court system. U.S. child psychologist and custody expert Richard Gardner calls settling these disputes in court "uncivilized and inhumane." Explaining his 1988 decision to stop testifying as an expert witness in custody disputes because of the damage being wreaked on families, Dr. Gardner said: "A system originally designed to determine whether an accused party did indeed commit a crime is being utilized to decide which of two parents (often quite equal in parenting capacity) would better serve as the primary custodial parent for their children."
He says he has "seen normal people become neurotic, and neurotic people become psychotic, as a direct result of embroilment in adversarial proceedings associated with their divorces." While the system claims to have "the best interests of the child" at heart, it instead converts children into prizes to be "won" and "lost." In so doing, it promotes venomous conduct rather than cooperative parental behaviour precisely at a time when children's well-being depends on these two adults learning to work together.
While Dr. Gardner admits not all lawyers financially exploit their clients by urging them to undertake prolonged litigation, he is disturbed by most of the ones he has met. "I have no hesitation in saying that some of these individuals are overt psychopaths," he writes. "Many have absolutely no appreciation of the grief they are causing fellow human beings."
His concerns are shared by Judge Benotto. In her 1995 ethics speech, she urged her fellow lawyers to take
responsibility for the "scorched-earth tactics" now being employed in family-law courtrooms. "We are the architects of a system that at best does not work to resolve domestic disputes and at worst is highly destructive," to the family, she told her colleagues. She urged them to "provide a new model for divorce" by encouraging people to negotiate divorce settlements between themselves.
Her closing remarks need to be heard not only by this nation's lawyers and judges, but by its legislators. They need to be heard by people who care about children, who believe in fairness and cherish justice. "We must make available dignified, civilized ways to have family disputes resolved," she said. "We cannot be part of the destruction of the social framework and deny responsibility for the social problems that result."
Donna Laframboise holds a degree in women studies and is the author of The Princess at the Window: A New Gender Morality
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