Canada’s Sloss retires





Carey Linde, lawyer - Vancouver


Madam Justice McLachlin of the Supreme Court of Canada in Young vs Young
1993 (1) said that, in looking at what is in the best interest of the child,
a court should be concerned with "maximizing contact between the child and
each parent." The standard dictionary definition of 'maximum' is: "the
most," or "the greatest quantity."

Why does this high principle and standard of "maximum contact" laid out by
the Supreme Court of Canada get eviscerated daily in the lower courts? How
can "every other weekend and Wed. afternoons" possibly be "maximum" time?
Why is there such an enormous gulf between the stated principles of the
highest court in our land and the practice in the lower courts?

Most jurisdictions in the United States and Europe have presumptions of
joint custody or co-parenting written into the family law. Why does Canada
remain seriously out of step with modern approaches to family law?

The answer to these questions is that, dispite some improvement, in the main
our courts remain stuck on wrong assumptions.

It is difficult to disprove assumptions because by definition they are
things that don't require proof. (2)

Statistics Canada (July 1998 "Growing Up With Mom or Dad" No 89-566-XIE)
reports that of children 0 - 11 years of age in B.C., 16.4 % live in single
mom homes and only 1.5 % with single dads. That is a factor of TEN times as
many mothers as dads getting the kids. The Divorce Act and the Family
Relations Act are gender neutral. Judges, politicians and administrators
tell an increasingly inquiring press that there no longer is any gender-bias
in the courts. Parents - particularly fathers - and family lawyers argue

It is the thesis of this argument that British Columbia courts can do a lot
better for children by putting dad back in their lives - not in the token
form by making him a visitor every other weekend and a weekday supper ( or
even two weekday suppers ) - but actual and meaningful co-parenting.

(Special thanks to Warren Farrell for helping point the way and Jay Michie
for "taking me on.")


Psychologist Dr. Joan B. Kelly, one of North America's most renowned experts
on the issues of child custody and access, addressed both the 1995 CLE
Family Law Conference and the 1997 Family Law Conference. In 1995 she
presented a paper entitled "The Determination of Child Custody," first
printed as an article in the journal Children and Divorce, Vol. 4 No. 1,
Spring 1994. In her address she recited the history of custody from Roman
times to the recent trend toward recognizing "the growing interest in shared
custody as a means of preserving parental status and responsibilities" and
as being in the better interest of the child.

". . . after focusing almost exclusively on mothers and children for
decades, the child development field began, in the early 1970's, to study
the father's contributions to the development of the child. The expanding
literature suggested that fathers' contributions had been undervalued, as
had been the importance of children's attachment to their fathers." ". . .
as divorce engaged the attention of the nation, numerous studies documented
the sense of loss and alienation experienced by noncustodial parents and
children in traditional custody arrangements after divorce." (3)

Acknowledging that the "best interest of the child" standard focuses
decision making on "children's developmental and psychological needs, rather
than on parental demands, societal stereotypes, or legal tradition," Dr.
Kelly pointed out that:

"The core problem of the best interests standard arises from lack of
uniformity regarding which interests to consider, how to define and weigh
different factors, and how to account for children's' changing developmental
needs over time. . . . Without clear guidelines, judges often make these
difficult decisions by relying upon their own subjective value judgments and
life experiences, resulting in unevenness in outcomes across or within
jurisdictions." (4)

Donald S. Moir is a senior family law lawyer in Vancouver, now retired. In a
paper he presented to The International Society of Family Law in Quebec City
on June 14 1996 entitled "Putting Children First: A Reconsideration of
Family Law" he said this:

"The adoption of the "best interests" standard for custody determination is
a necessary concomitant of no fault divorce. The late Meyer Elkin, dean of
court connected counsellors, once said that it was a phrase which came
"trippingly off the tongue" and had only such meaning as the user of it
implicitly or expressly chose to give it. Janet Johnston has recently said:

"From a sociologists, perspective, the best interests of the child standard
has little to do with knowledge about psychology or child development . . .
many of the (statutory) criteria within the (best interests) standard have
either never been investigated by researchers, are too vaguely stated to be
empirically verifiable, or have little or no consistent research support."

(Janet R. Johnston: Notes for an address to the Association of Family and
Conciliation Courts, May 10, 1996.)

"The unweighted criteria for determination or statutory guidelines far from
limiting discretion are no more than a vehicle to excuse the exercise of
bias. The greater the number of guidelines, the more the discretionary door
is open. And as Dr. Johnston has pointed out none necessarily brings to
decision making, our insights on child development.

"To say, however, that the best interests standard is wanting does not
suggest an alternative. For example, the "primary caregiver" rule in our
society is no more than a restatement of the maternal preference rule. It
does not tell us anything about the quality of the care nor is it predictive
of the capacity of the respective parents to meet the future changing
developmental needs of children." (Italics mine.) (5)

It is frustrating in court trying to help kids see more of their father when
he is just as good a parent as the mom. The courts don't demand of lawyers
for mothers that they produce any evidentiary bases for their essentially
emotional pleadings in support of sole custody and every other weekend
visits to dad. Mother's counsel rely on the old assumptions, which as noted
above, don't require proof. (Example: mothers are more important to children
than fathers.) In every other field of litigation alleged facts remain
alleged and not probative until they are proven by objective evidence.
Material opinions are given weight only from experts. Not so in family law.
Lawyers (for mothers or fathers) can argue as "fact" what is in essence
nothing more than subjective bias. The courts make daily rulings based on
these judicially presumed assumptions, thus perpetuating the mystique of
motherhood. (What Dr. Kelly calls the "disguised maternal preference
standard." and Donald S. Moir calls the "maternal preference rule.")

A newcomer to the practice of family law could be excused for believing that
there must be a large body of empirical evidence somewhere that "once upon a
time" conclusively proved women have a monopoly on nurturing and care
giving. Enshrined in the case law, one need not refer to it any further.

I set out in search of this presumed body of evidence, this Holy Grail of
mother's counsel. It was a mild surprise that there indeed never seems to
have been any objective, tested, evidentiary support for the "tender years"
doctrine, maternal preference, primary caregiver, maternal instinct etc.
(The present assumptions seem an over reaction in correcting for the general
inequalities suffered by women's denial of parental rights in the 19th
century augmented with "folklore, sentiment and stereotypes.") It was a
bigger surprise to discover that for several decades there has been a
growing body of research supporting the crucial role of fathers in the lives
of children. Even beyond that, there is evidence to suggests, statistically,
that children from single father homes do better than children from single
mother homes on some measures.

My argument is not that the best interests of children, if one has to place
them with either the mom or the dad, is met by placing them with their
fathers, although that is now an open argument. (The radical nature of this
thesis -if it bares out- like any change of paradigm, will take some getting
used to.) I put forward the evidence here in the hope only that the pendulum
can be moved away from the historical biases in favor of mothers - not just
theoretically as the statutes read, but actually - back to the center in
support of meaningful co-parenting. And I do it not because it is political
fashionable, or because society "feels" it should happen, or father's groups
demand it. I do it because the hard evidence supports it.

Determining the best interest of a child on the basis of objective evidence
and not hunches and subjective assumptions IS in the best interest of the
child. It is rarely - if ever - done!

Dr. Kelly says:

"No empirical evidence supports the distinction between primary and
secondary caretaker after age five, as children's greatly increased social,
cognitive, and emotional maturity creates changes in the meaning of
attachments and parent-child relationships to the child." (Emphasis added)

Data referred to in this paper suggests that there in fact is no distinction
between primary and secondary caretaker even before the age of five.

Michael E. Lamb edits The Role of the Father in Child Development, a
continuing and major text on the subject. In his introductory article in the
1976 edition (Whiley Press) he writes:

"Fourth, although full-time mothers obviously spend more time with their
children than working fathers do, there is a tendency to exaggerate the
extent of interaction between mothers and young children. The evidence
suggests that even when mother and child are in the same room, interaction
can be relatively infrequent (Clarke-Stewart, 1973). Goldberg (1972) and
Leiderman and Leiderman (1974, 1975, 1977) note that little social
interaction takes place in African cultures even when the infant is being
carried almost continually by its mother. Much of the time involved in
caretaking is taken up by activities (e.g., laundering, food preparation)
that do not involve interpersonal interaction (Fitzsimmons & Rowe, 1971;
Stone, 1970).

"Fifth, students of both cognitive and social development have come to
realise that the amount of time adults spend with children is not linearly
related - perhaps not related at all - to the amount of influence they have.
Empirical and theoretical

considerations indicate that the amount of time spent with the parent is a
poor predictor of the quality of the infant's relationship either mother or
father (Feldman, 1973, 1979 Pedersen & Robson, 1969; Schaffer & Emerson,
1964). Perhaps the best evidence of this is the fact that daily separations
from mothers such as those demand by day-care attendance do not appear to
disrupt the infant-mother attachment (Belsky & Steinberg, 1978;
Bronfenbrenner, 1975a; Caldwell, Wright, Honig, & Tannenbaum, 1970; Doyle,
1975; Doyle & Somers, 1975; Feldman, 1973; Ragozin, 1975; Ramey & Mills,
1975; Rieciuti & Poresky, 1973; Roopnarine & Lamb, 1978; Kagan, Kearsley, &
Zelazo, 1978), and there is no reason that the daily separations from a
working father need be more disruptive.

"The quality of the interaction and of the adult's behaviour (Ainsworth et
al., 1971, 1974; Bossard & Bell, 1966; Pedersen & Robson, 1969; Schaffer &
Emerson, 1964) are far more important than the quantity . . ." (7)

Psychologist Dr. Richard A. Warshak, Department of Psychiatry, University of
Texas, has been studying children for over 20 years. He is one of North
America's foremost authorities on the effects of divorce on children. In THE
CUSTODY REVOLUTION The Father Factor and the Motherhood Mystique he
introduces his book by putting the issue square and center:

". . . This cultural prescription dictates the same custodial arrangements
for all children: After divorce, children should live with, and be the sole
responsibility of, their mothers. Supporting this prescription are two
related assumptions: (1) Women, by nature, make better parents than men, and
(2) mothers are more important to children than are fathers. I refer to
these two beliefs, collectively, as the motherhood mystique-"mystique"
because there is no basis in reason for it. Part one of this book shows that
such beliefs cannot be justified by appeals to instinct, historical
imperative, psychological theory, or research. Raising children should not
be the exclusive prerogative of women any more than work outside the home
should be the exclusive domain of men.

"Clearly, our society regards divorced fathers as second-class parents. We
need no more vivid symbol of this than the prevailing practice of
restricting a divorced father's contact with his children to every other
weekend - what our courts call "regular visiting privileges." This practice
uproots the father-child relationship from the fertile soil of natural,
daily interaction and transplants it to the artificial turf of weekends
crowded with entertainment and gifts. But two weeks does not easily compress
into two days. In most cases, the relationship suffers." (8)

Dr. Warshak raises some interesting points when he says ". . . in our
culture any woman who does not maintain sole custody of her children is
stigmatized" and ". . . mothers are reluctant to allow their children more
contact with their fathers because they are uncertain about how this will
affect the children." The irony is that the past several decades of the
courts saying kids should be with moms is one of the main reasons moms think
the kids should be with them. It has become circular reasoning.

I share Dr. Warshak's sentiment that "By presenting the case for increased
father involvement from the point of view of the children's best interests,
I hope to initiate personal and cultural attitude changes that will permit
the mother who declines sole custody to live without shame."

In the conclusion to her article, Dr. Kelly writes:

"While joint legal and physical custody statutes now allow parents to share
child-rearing time and responsibilities after divorce as an alternative to
awarding sole custody to one parent, the most common physical custody
arrangement remains that of maternal physical custody. Despite profound
societal changes in the past two decades, which have affected family
functioning and parental care traditions, it would appear that the majority
of custody decisions continue to reflect, to a large degree, deeply imbedded
cultural traditions that view mothers as primarily responsible for their
children, both during marriage and after divorce." (9)

The history of "kids go to mom - dad visits" in Canada is succinctly summed
up in an article entitled "Oh Dad, Poor Dad" by Donna Laframboise. A few of
her points are:

". . . 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." p. 2

"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." p. 2

"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." p. 5

"Edward Kruk, a professor of social work at the University of British
Columbia, conducted a two country (Britain and Canada) study in the early
1990's on how divorce effects fathers. He concluded they are "judicially,
culturally and legislatively disadvantaged on the bias of gender" when a
marriage breaks down." p. 2

"Canada is years behind Britain and some US state in acknowledging that the
practice of awarding custody primarily to one parent is bad for everyone:
children, fathers - and overburdened divorced mothers." p. 3

"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." p. 3 (10)

Developmental studies of children over the past two decades are continuing
to produce valuable findings on the significance of fathers in the lives of
both male and female children and young adolescents. What follows are
findings from data gathered across a broad numbers of studies. Many of the
findings correspond to what has always been assumed as common sense, i.e.
young boys need the influence of a father in their life. Some of the
findings are more surprising, for instance the importance of fathers in
girls lives. And some are going to be controversial: in some areas both sons
and daughters can get more from dad than from mom.

Nothing in this argument should be interpreted to suggest that mothers
aren't terribly important in the lives of children, or that one gender is
"worse at" or "better than" the other. But the genders are different. The
brains of men and women have evolved differently. Fathers and mothers bring
different dynamics to the role of parent, complimentary and oppositional. It
is experiencing the loving tension between the differences that create a
healthy child and a robust adult.

I am not saying "Father knows Best!" Only that "Father knows Different!"

"They ( fathers ) also serve as models for their children and affect their
children's lives directly through their interaction with them whether it be
through play, helping with homework, or acting as their confidants. Fathers
also, like mothers, serve as interpreters of community and family norms,
teaching children which behaviours are acceptable and which are not. They
also serve as a disciplinary backup to the mother. In some circumstances,
particularly for older children, the physical strength of the father may
make a difference when it comes to enforcing rules. In addition, fathers may
be able to understand and respond to certain aspects of the child better
than the mother in that the child is a genetic combination of both parents.
The same, of course, is also true of mothers. Fathers also directly
influence their children through the quality of the relationship that they
have together. Children's well-being as measured by sex-role adjustment,
achievement, and psychosocial adjustment is enhanced when they have a close,
warm, and loving relationship with their fathers (Lamb, 1986). As noted
earlier, children with such relationships with both parents benefit even
more (Lamb, 1986).

"Lamb identified three components of parental involvement (applicable to
mothers as well as fathers): direct interaction in which parent is actively
engaged in activity with child; accessible in which parent is not directly
involved with child, but is in the same room or nearby and is, therefore,
readily accessible; and responsibility in which parent ensures that the
needs of child are met such as scheduling paediatric visits, making sure
meals are ready, and that child has clothes to wear." (11)

"Childrearing fathers . . . (have) produced three outcomes that are
specially relevant to the present investigation: increased intellectual
competence, increased social-emotional maturity, and greater sex role
flexibility." (12)


A) "Ironically, one of the strongest determinants of a child's healthy
adjustment to divorce is the extent of the father's continued participation
as a parent. Children of divorce suffer socially, emotionally and
intellectually when their fathers are not actively involved as parents. They
appear to internalize responsibility for the father's departure and suffer a
precipitous loss of self esteem and initiative that is reflected in
depression, poor school performance and failure in peer relationships.
Adolescent girls offer an especially poignant example: when their fathers
are not around they are more likely than a girl with an available father to
become sexually promiscuous. They have sex at an earlier age with more
partners and they are more likely to marry young, to find their own
marriages unsatisfactory and eventually to divorce themselves." (13)

"Furthermore, boys at every age suffer more from divorce than do girls - in
part because they usually live with their mothers and little time with their
same sex parent. Divorce is also more problematic for boys because mothers
tend to be more critical and anger toward their sons than their daughters,
and when the father is absent mothers discipline daughters more effectively
than sons. Research also suggest that when that when shared parenting
arrangements are not working, boys adjust better in the custody of their
father, girls better in their mother's custody. The best adjusted children
of divorce, however, have frequent access, without conflict, to both
parents." (14)

B) "We symbolize this decline by labeling the contacts children have with
their father after divorce, as visits. They live with their mother, they
visit their father. What sort of contacts do we label as visits? When
children go to school, we don't call it a visit, unless they happen to be
visiting a teacher from the past, in a school they no longer attend. They
practice with their soccer team, we don't call it a visit. When they attend
their dance class, we don't call it a visit. But, if they are observing a
class that is not their own, then we say they're just visiting. You all
belong here. I'm just visiting. Visit is a term we use when we set a person
apart in some fundamental way from others at the same location. A visitor is
a guest in the home, and without thinking about it, every time we use this
term to denote the time our children spend with their father, we're
endorsing a destructive idea. We're telling the children that after the
divorce, their association with their father must be transformed into
something less than a normal parent-child relationship. So, rather than
reassure children that they have not lost a parent as a result of the
divorce, we give them the message that the father is devalued. He's no
longer essential in their eyes. He's no longer a parent, in the same sense
as he was before the divorce. When we restrict their contact with their
father to every other weekend, then we remove the relationship from a
natural daily interaction and we transplant it to the artificial turf of the
weekends that are crowded with entertainment and gifts, for when his
children become guests, it follows that the father must now be a host. He
must entertain the guest, and, of course, this is what many divorced fathers
do. In fact, so many fathers do it that the phrase, "Disneyland Dad," is
commonly used to describe the altered relationship. Divorced fathers become
recreational directors. The research shows that homework and chores are no
longer their concern. Conflict is minimized. Fun time is maximized. But,
eventually, the visiting relationship wears thin. Everyone senses that
something has been lost. The father-child relationship is no long as rich.
It is no longer as comfortable. It is no longer as gratifying as before the
divorce. Two weeks worth of living do not compress easily into two days.
And, this is one reason why so many divorced fathers who dearly love their
children and work hard to support them during the marriage, gradually drift
out of their lives." (15)

"Fathers who have sole custody echo the complaints of mothers with sole
custody. They feel overburdened, just as the mothers do, but the evidence
indicates contrary to the stereo type that divorced men can rear and nurture
their children competently and are equally capable of managing the
responsibilities of custody, with the possible exception that the fathers
have been found more effective when it comes to matters like discipline,
enforcing limits, and that's particularly with boys." (16)

"The bottom line, of course, is how the children do when the father has
custodial responsibilities and the results of our studies in Texas, as well
as ten independent studies conducted throughout the country, indicate that
we cannot predict anything about how well a child will function merely by
knowing the gender of that custodial parent. That type of consensus, in my
field, really suggests a reform that is needed in custody policy, both to in
discrimination against fathers who want to share custody, as well as against
mothers, who suffer stigmas when they elect to share custody." (17)

C) "Numerous studies have established beyond a doubt that infants form close
attachment bonds with their fathers and that this occurs at the same time
that they form attachments to their mothers. Although father and mother
usually play different roles in their child's life, "different" does not
mean more or less important." (18)

". . . a warm, involved, caring father does militate against antisocial
behavior, and an inadequate father does increase the probability of
delinquency. As in the case of intellectual development and social
development, a father can be a predominantly positive or negative influence
with regard to his children's moral development. And this runs counter to
our cultural prejudice, which consistently devalues the father's
contribution to his children's psychological development. . . . for the
better part of this century, our society and it's institutions have
overlooked all but the father's economic contribution to his children." (19)

". . . stereotypes about the nature of men, women, and children have
dictated custody decisions throughout history. In earlier times, it was
assumed that men, by nature, are better suited to protect and provide for
children. Since 1920, it has been assumed that women, by nature, are better
suited to love and care for children. . . . As guidelines for custody
dispositions, folklore, sentiment, and stereotypes are poor substitutes for
factual information." (20)

D) "Recent studies of primary-caretaking fathers show that fathers can be
perfectly adequate primary caretakers and that there are both similarities
to and differences from caretaking patterns of mother. The differences are
as important as the similarities, because they provide a wider spectrum of
formative and growth triggering responses in infants as well as children of
older ages. The difference in parental styles complement one another,
constituting one of the key reasons why children need both a father and
mother." (21)

E) "The absence of fathers from their families is often associated with a
decrease in quantitative skills [citation] and inadequate development of
sex-typed behavior [citation] in children, especially in boys. Such effects
have also been reported in instances where the father lives with the family
but is to some degree unavailable to the child because of his work schedule
[citations]. The explanation most frequently offered for the effects of
paternal absence is the loss of the father as a model to the child. Although
the potency of the father as a model is in part a function of his status in
the family and his relationship with the child, the amount of direct contact
between father and child apparently also plays an independent role." (22)

". . . it appears that parental harmony is less important for most outcome
variables than are the affective relationships that are maintained after
divorce between the child and his or her parents." (23)

F) Fathers describing themselves as relatively highly involved with their
children pre-divorce were more likely to lose contact with there children
than fathers describing themselves on the periphery of their children''
lives pre-divorce. These latter often got closer. (24)

The first six to twelve months of separation between the parents were found
to be the most critical in defining the post-divorce father-child
relationship. p 21 This extremely important fact is one of the first victims
of the policy of our courts to grant interim orders of custody or principle
residence typically to the mother, set in place a bare minimum "visitation"
schedule with dad, and wait two years for trial to have a proper hearing.
Then, according to Kruk, Wallerstein and Kelly the damage could be done.

G) "The absence of fathers from their families is often associated with a
decrease in quantitative skills and inadequate development of sex-typed
behavior [citation] in children, especially in boys. Such effects have also
been reported in instances where the father lives with the family but is to
some degree unavailable to the child because of his work schedule. The
explanation most frequently offered for the effects of paternal absence is
the loss of the father as a model to the child. Although the potency of the
father as a model is in part a function of his status in the family and his
relationship with the child, the amount of direct contact between father and
child apparently also plays an independent role." (26)