Chapter 7

The Weapon of Choice

The divorce rate in Canada peaked at 50% in 1994 and has since levelled off at close to 40%. This is due in large part to the growth of common-law relationships which now number over 1 million. Studies have shown that they breakdown 50% more often than married relationships. Statistics Canada no longer collects data on family breakdown, but it is not unreasonable to estimate that about half of families ultimately breakup. Needless to say, custody and access disputes do occur very frequently and the issue of domestic abuse is often linked to court proceedings.

Research studies have found that in 70% of cases where domestic violence is an issue, there has also been alleged child abuse. The courts have also awarded custody of children to the mother in over 80% of cases. Considering the research findings that domestic violence is likely perpetrated equally by men and women, it is not surprising that the legal battles have become more complex.

In the U.S., domestic violence advocates are actively working to persuade state legislatures to ban joint-custody. They are pushing even more so to prevent fathers from being involved in their children’s lives, based on the myth of fathers being a potential for domestic violence. Research, on the other hand shows that the safest place for children is with their biological father. Likewise, the safest place for a woman is when she is married to and lives with the father of her children. This research indicates that there is a lot that can be done from a policy perspective to combat the problem of domestic violence. Allegations of domestic violence and actual instances of domestic violence surface three times more for separating wives than for divorced women and 25 times more than for married women. Since married, intact families proved to be the least violent environments, family formation and preservation policies would go a long way toward creating safer environments for all family members. Therefore policies which fit best are those that promote marriage and minimize needless divorces.

Custody battles are the other source of tension which often lead to domestic violence allegations. While eliminating a source of controversy, implementing joint custody policies will help insure that fathers remain involved in their children's lives, fulfilling their role as natural protectors of their children. Since the vast majority of intimate offenders come from absent father homes, joint custody has the additional benefit of decreasing the likelihood of children growing up to be such offenders.

Illinois is one State which has enacted new legislation to address problems with enforcing access orders. It is known as "Unlawful Visitation Interference" under the Illinois Criminal Code – Section 10 – 5.5 and it reads as follows:

Every person who, in violation of the provisions of a court order relating to child custody, detains or conceals a child with the intent to deprive another person of his or her rights to visitation shall be guilty of unlawful visitation interference.

A person guilty of unlawful visitation interference is guilty of a petty offence. However, any person violating this Section after 2 prior convictions is guilty of a Class A misdemeanor. This means that a judge can set a higher fine or order incarceration.

Any law enforcement officer who has probable cause to believe that a person has committed or is committing an act in violation of this Section shall issue to that person an order to appear. This is a ticket or citation which prescribes the fine, etc.

In their introduction to the legislation, it was stated that a child has a right to maintain a relationship with a mother, father or grandparent and the child shall not be used as a pawn by a vindictive parent. Parents must learn to love those children more than they hate each other.

When a parent pits a child against the other parent, it has been called "Parental Alienation Syndrome." This is a clinically recognized disorder characterized by one parent programming the child to hate the other parent. The children can show a variety of symptoms as follows:

  1. The child is obsessed with hate for the alienated parent.
  2. It only takes a little bit of prompting for that child to display that hate particularly in the presence of the alienated parent. However whenever the alienated parent and the child are alone, that hate is not displayed.
  3. There usually is no rationalization or reason for the child to display the hate.
  4. The children usually wants to have their personal property divided between the parents’ houses. That however is viewed by the child to be undesirable since it is not acceptable to the programming parent who would react with hostility.
  5. The children often do not recall what it was like or what events occurred at home before the parents broke up.
  6. The bond between the child and the programming parent is based on fear. It is a dysfunctional bond which is very unhealthy. The child feels that they would suffer if they displayed any loyalty or affection to the alienated parent. This represents a no win situation for the children because they cannot risk losing the only bond they have.
  7. The child will create their own scenarios and add that to the denegration of the alienated parent. This may be something like a false sexual abuse allegation which has been suggested by the programming parent.
  8. The child may refuse to go with the alienated parent during a visitation even without much prompting since they are reflecting the views they were trained by the programming parent. They also display a low level of self-esteem or self-worth.

Due to Parental Alienation Syndrome, the child will suffer long term effects because they have learned some terrible traits which they will carry into adulthood such as:

  1. They will learn to hate, not only a parent and extended family, but others because it is an acceptable social reaction.
  2. They will have learned how to cope through anger and rage which is what they saw in the role model of programming parent.
  3. They learn deceit and how to lie and manipulate.
  4. They have an absence of guilt and will not know how to express gratitude or affection.

By being in the middle, the child has effectively been used as a weapon. The consequences are so severe to children and that is why most experts agree that joint custody is a preferrable arrangement. We need to recognize that both parents have a vital role to play in raising their children and that their physical and mental well-being is at risk when the child is pitted against one parent.

The issue of custody and access has also become a major issue for the Parliament of Canada. As a consequence of the new legislation in Canada dealing with child support payments, it was recommended by Senator Anne Cools and accepted by the Government that a Special Joint Committee of the House of Commons and the Senate be appointed to address the issue of custody and access. Their terms of reference is to examine and analyze issues relating to custody and access arrangements after separation and divorce, and in particular, to assess the need for a more child-centered approach to Family Law policies and practices that would emphasize joint parental responsibilities and child focused parenting arrangements based on children’s needs and best interests.

The committee has been conducting consultations across Canada and I had an opportunity to participate in the hearings which took place in the Toronto area. Having monitored the proceedings of previous meetings, it became very apparent that the issue of violence or abuse against women and men was a critical issue to the consideration of custody and access. Numerous witnesses had advised the committee that over 80% of court judgments had awarded custody of children to the mother and that allegations of abuse had been a significant contributor to that result. There was also substantial concern about the impact of domestic abuse on children which many characterized as a form of child abuse.

One of the experts appearing before the committee was Dr. Marty McKay, a clinical psychologist, who has 20 years experience carrying out custody and access assessments. She spoke very eloquently about the pain she saw in the lives of children and the difficulties she has experienced in continuing in her role as an assessor due to what she characterizes as significant shortcomings and room for abuse that prevail in our family law system.

The following is an extract from her testimony:

"As consultant to the Children’s Aid Society for 15 years, I worked with battered women in transition homes. Within the past ten years, I have come to see that men, or fathers, constituted a vulnerable group within the family law system. By a decision for a woman to leave the marriage, a man may be bereft of his children, falsely accused of abuse, have his children coached to give evidence against him, and end up fighting for his reputation, access to his children, and his freedom in some cases. I have seen some terrible cases that have caused me great concern for the future of children who are being deprived of half of their heritage and who have half of their emotional life torn away from them. I’m surprised, starting out as a feminist myself and one concerned about abuses and fairness toward women, to reach a position where I am genuinely concerned about the future of fathers. … I believe that without the adversarial system and the ease with which false accusations and adversarial fires can now be fueled and burned, without those opportunities, most couples can come to reasonable arrangements in caring for their children post-divorce. They need education; they need the assistance of professionals who are committed to fairness, who do not see one parent as virtuous and another parent as evil, who give both parents the right to continue having meaningful relationships with their children, who are not informed by some kind of misguided political correctness."

Mandatory mediation had been the recommendation of many experts that came before the committee. During the questioning of witnesses, I had the opportunity to ask Dr. McKay about her view of mediation in cases of custody and access disputes. Her answer in part is as follows:

"I feel that mediation needs to be done even when there are allegations of violence. There's a joke going around that's really not very funny: all men are suspects until accused at which point they become guilty. When we're talking about allegations of violence, I think the pictures in people's minds are of men battering women. If we reverse that and say that a man alleges that his wife hit him over the head with a frying pan, do we then scuttle the mediation process too, or are we thinking that men are the abusers? In my experience, it's about 50-50. Allegations are things that come up in the course of assessments, and I think they come up because people want to get an edge, they want to come out on top. As long as it is a contest, people are going to be motivated and there aren't that many negative ramifications to someone launching a trial balloon of abuse. So to answer your question, I think that mediation is helpful and should be carried out in almost every case."

I also asked Dr. McKay the question that since over 80% of custody awards are to the mother, would she be surprised if we came to the conclusion that maybe the courts have erred in judgment in a lot of cases? Her response:

"Yes, I think they have. My finding is that there are a lot of very nurturing fathers out there. I've had some women tell me that they don't care how the assessment turns out because they're going to get custody of the children anyway, because they always give custody to women."

Also appearing as a witness, was Ms. Beth Bennett, Program Director for the Assaulted Women's Health Line. Her intervention was from a different perspective and extract of her testimony is as follows:

"All of us who currently work in the field of women abuse recognize that problems related to custody and access present one of the biggest hurdles for women who are trying to escape from violent partners. Some observations are as follows. It is custody and access, as currently enshrined in law and interpreted by the courts, that keep women trapped in abusive relationships, since the two most common threats an abused women shares from her partner are that she'll never get the children if she leaves him and that he'll kill her if she leaves him. It is access ordered by the courts that allows men to find their ex-partners and kill them after they leave. This also includes the murder of children. It is custody and access that make it impossible for abused women to make a fresh start free from abuse. It is custody and access that judges do not understand in the context of violence. It is custody and access that allow abusive men to continue to abuse, creating the intergenerational effects of family violence. Peter Jaffe’s research demonstrated clearly that witnessing violence has the same effect on children as being abused directly. Past conduct has not been considered relevant by the courts unless it has been deemed relevant to the ability of that person to act as a parent. The onus needs to be shifted so that abusive fathers will have to prove that access is in the best interests of the child. A man who abuses his wife has committed child abuse, and any new custody and access legislation needs to be framed in such a way that this reality is acknowledged. Both witnessing wife abuse and/or being abused have long-term and devastating effects on children. Therefore, men who abuse their partners should have no right to continue to abuse their children. Any new legislation should be drafted in a manner that reflects an understanding of the pervasiveness of wife abuse in our society and an understanding of the effect on children of witnessing wife assault. The assumption that as much access as possible to both parents is good for children must be challenged. Such a right should only be earned by a history of involved parenting and a past free of spousal abuse. The tone of this committee's mandate implies that separating parents are articulate, reasonable, and able to work out their disagreements amicably. It also appears that they have been framed in the context of a white, middle class, anglophone couple."

Ms. Bennett continues her remarks by saying that joint parenting responsibilities becomes a non-issue when abuse is present. Where there is a clear risk of further abuse, this is hard to challenge. However she also went on to state that joint parental responsibilities in matters where abuse is not present are still not necessarily conducive to a child-focused parenting model, and hence not in the best interests of the child.

Ms. Bennett does not seem to believe that fathers have anything to contribute to the healthy outcomes of children when the marriage breaks down. This is where I have a problem. In March, 1997, I published a book titled "Divorce - The Bold Facts". In my research, I found studies that showed that 40% to 50% of children whose parents have divorced no longer see their fathers. The most frequent reason for fathers fading from their children’s lives is the interference of the mother. In addition, access and visitation schedules are not always flexible enough to allow children's relationships with their parents to continue to grow.

The Canadian research is not readily available but there is substantial American research from places such as the Center for Disease Control and the U.S. Department of Justice. They have found that fathers are crucial to the normal development of children. In the United States current research has shown that fatherless homes account for the following:

The statistics are alarming and the experts appearing before the Joint Committee concurred that it was crucial that both parents remain involved in their children’s lives even if the parents hate each other. The fact the women’s advocacy groups dispute the point is very important because it reflects on their thinking and on their counselling of women. If they are giving misguided advice at a critical time, they may be part of the problem.

Ms. Bennett concludes her testimony with the following:

"Men who abuse their partners are not fit parents. The abuse continues after separation, and more women are killed after separation than before. A new law needs to be drafted in such a way that men, who usually have superior financial resources, cannot subvert it by hiring lawyers to delay settlements that exhaust and bankrupt women. We expect that you will give these responses the careful consideration that the Assaulted Women’s Helpline believes they deserve, so that children are no longer treated as property, and so that parenting is viewed as a responsibility that fathers earn by treating women and children non-violently."

It should be pointed out that Statistics Canada reports that 55% of child abuse is perpetrated by women. In addition, the Joint Committee was also presented with the results of different studies by Straus, Gelles, Steinmetz, Curtis and one by the University of Manitoba all of which reported that husbands and wives were equally responsible, on a 50-50 basis, for violence in the family. In the assessment of Mr. Claude Lachine: "The problem in all this, and this is where children come in, is that, where family violence is caused by a woman, the children are the direct victims, but the legal system comforts women in their behaviour because there's no reaction in the men or the children who are the victims."

Another of the presentations made to the Committee was presented by Mr. Steven Easton, Managing Director, Easton Alliance for the Prevention of Family Violence. His testimony was as follows:

"Twenty years ago, the term "domestic violence" was almost unheard of. Today the term is more widely understood. What we haven't heard is that domestic violence covers much broader ground than we have been told.

Our agency, to the best of my knowledge, is the only family violence prevention organization in Canada, providing support to abused men. We have therefore seen domestic violence as a larger, more complex social problem than our contemporaries in the field have. For this reason I am here today to offer this committee an insight into an untold aspect of domestic abuse and its impact on custody and access.

As was spoken of earlier, in any relationship between two or more people there exists a dynamic that may favour one person more than the others. Contrary to popular belief, women are not wholly without power in relationships. Men's power and women's power come from different aspects of our socialization. In general terms men's power is defined by career and their ability to provide for their families. Women, on the other hand, have been socialized to prepare for marriage and child rearing, and their power is based on family appropriation. Today, however, women are more career minded and men more family and child oriented. Now, not only is there a power in balance, but a confusion as to actually who has the power.

When women abuse men from this position of power, it often involves using the children as weapons against the husband. When the family breaks down, children are often used by abusive women as pawns in their power struggle. Often children who had loving relationships with their fathers suddenly turn against them or are denied access to them altogether. Powerlessness is about the removal of choice or the giving away of it.

"Breaking the cycle of violence" is a catch phrase used to acknowledge that family violence is cyclical and to emphasize the need to interrupt that cycle. Inter-generational transmission of family violence occurs when children live in an abusive home, witness abuse or are abused directly, grow up, have children of their own, and abuse their partner in the presence of their children or abuse their children.

The children in this cycle will be 1,000 times more likely to repeat their parent's behaviour than a child from a non-abusive home. The need to break the cycle is obviously very important if we wish to end violence in our homes.

Male victims of family violence have had little social support, so they continue to be isolated from services that are ostensibly set up to assist all victims. Their victimization is further compounded by a sexist attitude in our society, which causes men to minimize their own experiences for fear of embarrassment at the mention of their abuse. Our society reinforces the notion that men must be strong, in control, and aggressive. Any man who falls short of these goals is not a real man. So in order to keep up the appearance of being strong and in control, abused men suffer their abuse in silence.

Our courts themselves have occasionally become unwitting accomplices in the abuse of individuals after the relationship has failed. Many times decisions made in family court are made without one party's knowledge, ex parte; radically alter a person's place of residence, their income, their access to the children, their ownership of personal property, and their parental authority; and are based on limited and sometimes unsupported allegations by one party against the other. This system of family law in Canada has, on occasion, been used for its power by abusive people to further their own agendas.

By way of example, if I'm married to a controlling woman and she didn't like my choices, she might employ a number of control tools to get me to comply. I might come home and find that I'm locked out of my house. I might find a gift from my mother smashed or pictures I had painted destroyed or perhaps photographs in my photo album ripped up. I might find that she is having an affair, or she might slap my face or pull my hair or scratch my arms. She might spend our money on things we don't need, putting us into bankruptcy, or she might take all the money out of our bank account and leave me penniless. If I have children, they might be asked to act as a mediator relaying her full messages, or my kids might be told how worthless I am and begin to turn against me.

If I decide to leave she might want to force me out. She might lie and make false statements, because she doesn't want people to know she was responsible for the demise of the relationship.

Is she then going to give me control over the court process? Will she give me reasonable access to my children? Will she deny me my access if the court decides to accede to my request for access? If I left her, she might even be angry and become vindictive. I might be accused of doing things to her and the kids I didn't do. She might try to claim that she was the victim all along and that it was I who was abusing her and the kids.

In court I will find a suspicious and unsympathetic judge, who will err on the side of caution and grant me supervised access, while my children grow up in the hands of the batterer. My children will then be abused, and the cycle of violence will continue.

Will I be angry? You bet I will.

Custody and access is about who has the power and control over the children of the marriage. Given to the wrong person, it will ruin the children and create a future generation of abusers, victims, and unhealthy people."

With regard to the prevalence of violence, Mr. Easton also had this to say:

"Our research comes from many different empirical sources, usually university studies conducted on a random sample of different populations. Those studies were at the University of Calgary, University of Winnipeg, University of North Carolina, and University of South Carolina.

A number of different sites in North America have provided figures that quite frankly are surprising. Much of the domestic violence literature that we knew of up to now indicated that there was a 95% abuse rate toward women and a 5% abuse rate toward men, but these studies conflict with that. These studies indicate that in domestic violence situations it's equal. In the same types of situations, even if you look at different family structures, such as same-sex families, the same statistics occur.

So what it's really telling us from the social surveys we've been able to analyse up to this point is that as human beings we're all equally capable of abusing one another. It just requires the right motivation.

It depends on where you get your statistics. But I find that the most reliable statistics are generally the random samples of populations. We have different polls that are used during elections because they're usually fairly reflective of the society that we live in to within a percentage point or so. All of these studies indicate about a 1:5 ratio of domestic violence in the home, with about 50% of the domestic violence happening toward men and 50% toward women."

Later in the hearings, I also had the opportunity to ask questions of Mr. Michael Day and Mr. Bruce Haines. Both are lawyers specializing in family law. The following is an extract from the hearing transcripts:

"Mr. Paul Szabo: Mr. Day and Mr. Haines, between the two of you, I guess you have about fifty years' experience in these matters. I would like to ask you a question, because probably everyone wants to know your opinion on it, although I don't know that there is a good answer.

Under the current divorce laws, lawyers are required to inform the client of mediation services and the advisability of negotiating issues. They have that obligation. I assume that we go through something, but I suspect it's not something that is as constructive as it might otherwise be if it was mandated that they go through or try mediation first.

The question I want to ask you is this: In view of the fact that in over 80% of the cases custody is awarded to the mother, and in view of the fact that we are here discussing all of these terrible problems that we have with custody and access issues, should we then conclude that the courts have been in error in a large number of their custody awards?

Mr. Michael Day: I guess my response to that is it's almost a foregone conclusion that the mother will have custody.

When I'm interviewing a male client, and I ask for both male and female, I ask him if he is interested in pursuing custody of his children. Quite often, I get a shocked look from the client. The look is followed usually by a question. He asks: "Do you mean I've got a chance?" My response to him is that the odds are against him. I say we should listen to what happened to his marriage and why it broke down.

I ask all my clients if there's a chance of mediation or reconciliation. Before I even get the question completed, I hear a resounding no. They say it's not going to work. They say that this is why they're there.

So is it a judge's error that the wife gets custody in most cases? I think it's just a mindset so far.

When I go to court with a male client who is looking for custody, it's always an uphill battle. I always have to have a special-fact situation in order to have a good chance at getting custody.

Mr. Bruce Haines: As I said, it's not an issue of judicial bias, it's a problem of an entrenched gender-systemic bias.

In one of the two cases I mentioned where the charges were withdrawn against the wife who had seriously assaulted the husband, her attitude— she remarked this to him —was that in Ontario, even whores get the kids. Quite frankly, it's a statement that's not without merit.

We also see other situations where for example existing access orders are violated by custodial parents day in and day out. It's the old story of Johnny's sick, Johnny doesn't want to come out, or Johnny decided that he had to go see a friend. Whatever reason it is, the consequence of the wife disobeying the so-called access order is none, with one exception. After numerous— 10, 15, 20, or 30 —occasions, a judge— it was not too far away from here —had the guts to send the lady to jail for 60 days. It's under appeal. There was a crowd of men there cheering. They couldn't believe it. You know, they were right.

Let me tell you the consequences of the husband who violates a custody order. He's picked up and charged with abduction under section 282 of the Criminal Code. He's dealt with harshly. That's the routine, and not the exception that we saw.

So I say no, it's not judicial bias. They're all in that same river that has a current. All I'm trying to suggest is let's take the current out of the river.

"

In my view, the hearings of the Special Joint Commons and Senate Committee on Child Custody and Access will have a significant impact on the whole issue of domestic violence. With regard to custody and access, there seemed to be a strong consensus on a number of points as follows:

The Joint Committee is completing its hearings and is expected to submit its report in the Fall of 1998. Although its report is only for the consideration of the Government, I predict that it will have a major affect on Family and Divorce Law in Canada. It may also lead to the first truly comprehensive research study on domestic violence that will once and for all show that domestic violence is a societal issue. All of this will not happen without a major uprising in the women’s movement. This report could represent the most serious threat that the women’s movement has ever seen and it will be fought on every front.

The first battleground will likely be on the Divorce Act in regard to counselling and joint parenting arrangements. For many fathers, our divorce law perpetuates a bias against them. To many, equality and justice of the family court system is a contradiction of terms. The system’s anti-male bias is an issue since fathers are less likely to be awarded custody than mothers, they are more likely to be punished for violating court orders than their wives, they are more vulnerable to being falsely accused of abuse and they are presumed guilty once such an allegation is made.

Complicating abuse allegations is the fact that perjury is likely widespread in the affidavits filed in divorce proceedings. Ontario Judge Mary Lou Benotto, in a speech on ethics in family law said "It is widely acknowledged that perjury is rampant and moreover goes on unpunished in affidavits despite the fact that they are signed oaths produced by lawyers and their clients". She suggests that it is often assumed that non-custodial fathers are uninterested in their children and undistressed by their absence. Many people in our society, including judges and politicians, do not care about father's rights and equalities. In a just society, the subjects must be addressed and must prevail. Judge Benotto urges her colleagues to stop being the architects of the system that at best does not work to resolve domestic disputes and at worst is highly destructive to the family. She urges judges to encourage people to negotiate divorce settlements between themselves. These are the kind of insights that are important not only for judges, lawyers and politicians but also for the public at large to expose the prevalence of deceit when it can help someone get what they want.