2004-06-25, "Star Chamber Shenanigans"

Right decision, wrong reason, 2004-12-23

Print edition A17 (online by subscription only), December 23, 2004

Irwin Cotler, the Justice Minister, announced on Tuesday that the federal government will hold off on reforming child custody laws. We can't say that's too much of a disappointment. If enacted, the expected changes would mostly have served to tilt the anti-father bias of Canada's family courts even further in favour of women.

First proposed by Mr. Colter' s predecessor, Martin Cauchon, the now-dormant bill would have scrapped existing provisions compelling the courts to grant "maximum contact" to both parents and severed the last remaining connections between payment of child support and access by fathers to their kids. Worse, it would have given judges the power to withhold all access to fathers with past histories of violent behaviour while permitting wives to raise allegations of abuse at divorce proceedings even if they had made no previous complaints of violence -- a recipe for false accusations in bids to win total custody.

The Cauchon law was also a direct slap in the face to the joint Parliamentary committee that recommended "shared parenting" -- i.e., granting both parents equal custody and responsibility for children at the end of the marriage -- after years of study. Despite the Senate-Commons committee having held extensive hearings on the subject, Justice department bureaucrats held another set tailored to suit their own views before submitting recommendations to the justice minister (then Anne McLellan) that were diametrically opposed to those of the committee.

But while the decision to put off the legislation doesn' t trouble us, the reasons behind it are more unsettling. By all appearances, the postponement of the child custody changes has nothing to do with Mr. Colter recognizing their flaws; rather they simply appear to have slipped down his priority list -- notably below Divorce Act changes to allow for gay divorce, which the Justice Minister is keen to have ready by the time same-sex marriage legislation comes before the House next month.

As bad as the proposed child custody amendments were, they were presumably a sincere attempt to make children' s lives better after the break-up of their parents. That the Liberals consider this less deserving of their attention than gay marriage and divorce is a little curious.

Far more of this country' s children (roughly 35,000 annually) are affected by divorce than there are gays hurt by their inability to marry. Children of divorce are more likely to suffer behavioural problems, drop out of school, experiment with drugs, commit violence against a partner or spouse and run afoul of the law. Not surprisingly, they are also more likely to divorce from their own spouses later. But divorce is a modern fact of life, so improving the laws governing custody and access by non-custodial parents in order to lessen its adverse consequences ought to be among the government' s top priorities.

Rather than simply reviving Mr. Cauchon' s deplorable legislation when it suits him, Mr. Colter should turn his attention to crafting a new custody law more in keeping with the parliamentary committee' s common sense proposals. We hope that this will be one of the Justice Minister' s priorities in 2005

The judge, his wife, the injustice, 25 April 2004

The Sunday Times (Britain)
25 April 2004
By Margarette Driscoll

A top legal figure who presides over the family court finds himself the victim of a bitter divorce and now realises the system fails fathers, he tells Margarette Driscoll.
Imagine you are a happily married man touching 50. You have a glittering career, a beautiful wife and two young children. Home is a large, stuccoed house in a fashionable part of London.

Your wife starts a new job and falls in love with a colleague. In little more than a year, your life falls apart. You are accused of domestic violence and turfed out of your home of 13 years. You were once a daily part of your children's lives; now you see them by arrangement. Fraught court hearings leave you exhausted and penniless. You rely on the kindness of friends for a place to stay.

The whole process leaves you with a broken heart and a burning sense of injustice: the irony is that you are a judge, presiding in the family courts. Amazing as it seems, this is the predicament of one of Britain's most prominent barristers and part-time judges.
The man cannot be named due to the strict rules of secrecy surrounding family proceedings, but he has decided to speak out because he feels so strongly about what has happened.

I cannot believe that somebody like me is so powerless, he says. Here I am, a judge, a father, someone who has never lifted a finger to another human being. Yet my wife and her lawyer have been able to run a case against me alleging domestic violence that has led to the issuing of an injunction against me with powers of arrest. Can you imagine the humiliation? I had no idea of the unfairness of the courts until I became involved with them myself.

Groups such as Families Need Fathers and Fathers 4 Justice - some of whose supporters brought traffic on bridges and motorways to a halt as a protest at the beginning of February - have been complaining for years that men get a raw deal in the family courts, as has, very publicly, Bob Geldof.

Accusations of domestic violence are routinely thrown into the pot to justify barring men from their homes or children. Such a claim is almost impossible to refute, however glowing one's character references - and the judge has many, from leading legal figures and from his first wife, who says she would vouch for him unhesitatingly

The government and judiciary recognise that there are problems with the running of the courts. Earlier this month Mr Justice Munby, one of the country's most senior family judges, admitted he felt ashamed when faced with a man who had fought for five years, unsuccessfully, to see his seven-year-old daughter.

A green paper due out this summer is expected to outline proposals for mediation, which would try to teach divorcing couples to put aside their own anger and focus on a post-separation plan for themselves and their children.

Family cases are extremely sensitive. If our judge's situation had been played out in his own court, he hopes he would have asked more questions taken more time, tried to get to the heart of the matter. But he admits that though he knew of the calls for reform within the law over the past few years, he did not take them seriously enough.
As a judge you feel that your innate sense of fairness and that of your colleagues will prevail and that for that reason, the courts must work reasonably well, he says.
His difficulties began just over a year ago. His wife had been having an affair for some months and had decided that, after 15 years their relationship was over. The judge claims she wanted him move out. He refused, partly because he didn't see why he should and partly because he still loved his wife and did the Lion's share of caring for the children. I often worked from home so I helped the nanny, he says.
I would make the beds, do the food shopping, collect the dirty washing and put a hot meal on the table when she got home.

This is what is also so hurtful about all this. I belong to a generation of men who saw their marriage as being part of a team. I helped her build up her career and played my part in looking after the babies. But she has behaved like an old-fashioned chauvinist, effectively saying to me: I've found a new man, you've served your purpose, now go away.

In the early months of last year the relationship became increasingly strained. His wife frequently spent evenings and weekends with her boyfriend. In March, while his wife was out for an evening, the judge moved his belongings out of a spare room and into a self-contained flat in the house that had been used by the nanny.

His wife went berserk, he claims, and flew at him, screaming, kicking and scratching. He held her by the wrists to try to calm her down. The encounter left bruising. Soon afterwards he received a letter from her solicitor accusing him of manhandling his wife.
A month went by, with relations increasingly frosty. Then, when his wife was again out for an evening, the doorbell rang. The judge answered and was handed an injunction, banning him from certain rooms in his home and threatening arrest for infringement. His wife and her lawyer had gone to court on an emergency "without notice" basis, usually reserved for situations of extreme threat.

The judge knew nothing of the hearing, nor that the injunction was based on an allegation of domestic violence. It was surreal, he says. I had no knowledge of the hearing and was given no opportunity to defend myself. But that injunction set the tone for what has happened since. From that day on I was branded a violent man, even though there is not a shred of evidence that I have ever been violent to anyone.
Neither a doctor's report, which he believes would have tended to bolster his case, nor his full written explanation of the incident of manhandling was put before the court. The judge believes this materially affected his case and has complained to the Law Society and the Bar Council.

I simply cannot understand how this order was given, other than that it is true that the family courts react to certain buzzwords, he says. If it was me presiding, I like to think I would have asked what kind of violence, when was the last incident, why isn't the husband here?

You are dealing with something that has a devastating impact on someone's life. I was at a seminar about family law reform a little later and I looked around at my fellow judges and thought: You have the power to have me arrested. It was so surreal.
He did attend a hearing two weeks later, but the judge hearing the case was pressed for time and could not hear all the evidence. The next hearing was cancelled. In all, the case has come before 18 different judges.

In June last year, the judge was ordered to leave his home. He spent the first night on a sofa in chambers and has since stayed at the homes of loyal friends.

The irony is that he is still on call to preside over family cases. The next time he sits at a divorce hearing he will be much more aware of the issues, he says: "Too many people leave the courts wounded. I will make sure everyone s voice is heard.

"Not having been through a personal crisis doesn't disqualify you as a judge, but having been through what I've been through takes your understanding to a deeper level. The one good thing about all this is that my experience has sensitised me. I have become a better judge."

F4J - BC Law Society's Dinner gets a taste of F4J's "Just Desserts"

2004-11-18_F4J - BC Law Society's Dinner gets a taste of F4J's "Just Desserts"

2004-11-17  Fathers-4-Justice special operatives Crash the BC Law Society at the Pan Pacific

2004-11-16  Same-sex issue <and  Supremacy of Parliament> back on agenda

2004-05-04  Judges are the "new priests" of Canadian society, <to protect> abortion, same-sex marriage <from silly Parliament> argues top judges.

2001-07-16  Minister has let bureaucrats take over Justice, critics charge (says MP John Bryden. & MP Roger Gallaway of Liberal Justice Minister Anne McLellan

<Activist Judges creating> Consitutional Crisis in Canada

2004-12-29  Boy made into cause by group; Advocates say father's death a case of alienation syndrome

2004-12-18  Vancouver Santa March, Global News

2004-12-18  Vancouver Santa March, CTV  

2004-11-17  F4J Action Video

2004-12-20  The myth of the gentler sex

A nine-year-old boy died after his mother spiked his hospital feed with salt

2004-11-26  Mother denies poisoning son, nine, UK

Powder Cloud

The powder hung over MPs in a cloud as stunned members looked on.