IDEOLOGY AND DYSFUNCTION IN FAMILY LAW HOW COURTS DISENFRANCHISE FATHERS You know the family is in trouble when a whole branch of the law is devoted to it. -George Jonas GRANT A. BROWN, D.Phil., LL.B. Published by Canadian Constitution Foundation and Frontier Centre for Public Policy FRONTIER CENTRE FOR PUBLIC POLICY Reviews of the book Buy this book! Meticulously researched and thorough, yet easy to read for the lay person, Oxford educated philosopher, professor and lawyer Grant Brown has created a tour de force exposition of family law in Canada today. There is no more compelling argument for Canadian family law reform than this book. Ideology and Disfunction in Family Law is a soon-to-be classic and a must-read for anyone interested in families or family law in Canada. - Dr. Paul Millar, Nipissing University . Grant Brown’s well-written and well-researched book should be required reading for anyone involved in the divorce industry. It is an blunt and comprehensive assessment of the badly flawed, gender biased system that routinely removes children from the lives of divorced dads and renders them, at best, as “visitors” in their child’s life and, at worst, as “wallets” for their ex-spouses. Brown is at his best using incisive logic and well-crafted illustrations to easily refute the arguments of defenders of the status quo. He fearlessly takes on many in his own profession who serve to perpetuate the system that denies divorced fathers basic rights of parenthood. This is an especially honest and courageous book that should be a catalyst for long overdue changes in the way we approach divorce and parenting. Implicit in Brown’s analysis of the serious flaws in the existing (anti-father) system is that unless there is fundamental change to establish an equal parenting system, there is a real risk that prospective fathers (especially the financially successful) will be reluctant to marry and have children. - Dr. Chris Sarlo, Nipissing University . There is no dearth of material on the bias against fathers in western family courts. As a journalist focused on culture and ideology in Canada’s social institutions, I have read many books and articles on this subject. Ideology and Dysfunction in Family Law: How Courts Disenfranchise Fathers is in my experience unique in its referential breadth and depth. This book unites impeccable legal scholarship, moral philosophy and evidence-based cultural analysis with stylistic precision and elegance. Grant Brown puts forward arguments never heard in family court: parents’ inherent rights; children’s real best interests (not what the courts usually say they are); the unconstitutionality of the Child Support Guidelines; and, in general the irreconcilability of the law with the first principles of justice. More than a superb reference book for journalists and policy makers, not to mention all educated readers with an interest in judicial fairness, Brown’s book should be on the obligatory reading list of every law school in Canada. - Barbara Kay, National Post columnist and author Table of Contents Acknowledgements Chapter 1 Disenfranchising Dads Chapter 2 The Limits of the Best-Interest Principle Chapter 3 A Vindication of the Rights of Parents Chapter 4 A Penal Code for Separated Fathers Chapter 5 An Unconstitutional Entitlement Chapter 6 Deadbeat Judges Appendix In The Worst Interests of the Child Endnotes References / Cases Cited Ideology And Dysfunction In Family Law HOW COURTS DISENFRANCHISE FATHERS By Grant A. Brown, D.Phil., LL.B. About the Author Grant A. Brown obtained a B.A. (Hons.) and M.A. in philosophy at the University of Waterloo, and a D.Phil. in political philosophy at Oxford University, England. He taught applied ethics and applied political philosophy in the Faculty of Management, and theoretical ethics and political philosophy in the Philosophy Department, at the University of Lethbridge. He subsequently obtained an LL.B. at the University of Alberta, before commencing a private practice of family law in Edmonton. Throughout his academic and professional career, Dr. Brown has published extensively in both the popular and academic presses, taking a particular interest in gender issues. His ground-breaking empirical work on employment equity and domestic violence is complemented in the present book by an analysis and assessment of family law in Canada. CANADIAN CONSTITUTION FOUNDATION and FRONTIER CENTRE FOR PUBLIC POLICY 2013 Canadian Constitution Foundation (CCF) The Canadian Constitution Foundation (CCF) is “Freedom’s Defence Team”. A registered charity, independent and non-partisan, we protect the constitutional freedoms of Canadians through education, communication and litigation. 1830 - 52 Street SE, Ste. 240, Calgary, AB Canada T2B 1N1, www.theccf.ca / twitter: @cdnconstfound Frontier Centre for Public Policy The Frontier Centre for Public Policy (FCPP) is an independent Canadian public policy think-tank. Founded in Winnipeg in 1997, the Frontier Centre received charitable status in 1999 and currently has offices in Alberta, Saskatchewan and Manitoba. Our research aims to analyze current affairs and public policies and develop effective and meaningful ideas for good governance and reform. 203-2727 Portage Ave., Winnipeg, MB Canada R3J 0R2. www.fcpp.org / twitter: @FrontierCentre Published by the Canadian Constitution Foundation, 1830 - 52 Street SE, Ste. 240, Calgary, AB Canada T2B 1N1, www.theccf.ca and the Frontier Centre for Public Policy, 203-2727 Portage Ave., Winnipeg, MB Canada R3J 0R2. www.fcpp.org Copyright © Grant A. Brown, 2013. All rights reserved. LIBRARY OF CONGRESS CATALOGUING-IN-PUBLICATION DATA Brown, Grant A. Ideology and Dysfunction In Family Law: How Courts Disenfranchise Fathers Grant A. Brown, D.Phil., LL.B. ISBN No. 978-0-9878954-2-4 1. SOCIAL SCIENCE/General Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording, or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book. The scanning, uploading and distribution of this book via the internet or via any other means without permission of the publisher is illegal and punishable by law. Please purchase only authorized electronic editions and do not participate in or encourage electronic piracy of copyrightable materials. Your support of the author’s rights is appreciated. Layout and typesetting by RAS, Toronto. Manufactured in Canada Acknowledgements My first thanks go to John Carpay who, when Executive Director of the Canadian Constitution Foundation (CCF), encouraged me to write a book about my experiences as a family-law lawyer. I soon realized that a great deal of sociological, ethical, and legal groundwork had to be laid before non-specialists would be able to appreciate fully the biases inherent in the system in favour of mothers. My “appendices” dealing with those subjects quickly expanded into chapters, and then evolved into the book you have now. Chris Schafer, John’s successor at the CCF, was instrumental in shifting the focus of the book from primarily a discussion of actual cases into a theoretical assessment of the family-law system. (The work on a more revealing book containing actual case histories – which puts chambers and trial judges under a much-needed microscope – has been suspended, pending demonstration of further interest in the subject.) Chris has provided a steady hand at the tiller, steering this book to press. Financial support from the CCF for this project is gratefully acknowledged. I must also thank Peter Holle of the Frontier Centre for Public Policy (FCPP), and the FCPP’s former book-project director, Marco Navarro-Genie, who assisted in the publication process in ways that mostly remain mysterious to a writer. Contributions to the arguments of this book come from people too numerous to mention in detail. I wish to give special thanks to Professor Emeritus Ferrel Christensen, who has over the past two decades given me both encouragement and general guidance – not always taken – in the minefield that is gender politics. He is a model of integrity, clear-headedness, and fairness in debate. His reviews of various stages of the manuscript were truly helpful. The great influence of Professor Paul Millar is also evident, especially in chapters one and four. He patiently answered my questions about the results of his seminal research; any remaining misunderstandings are entirely my responsibility. Less evident, but no less significant, is the influence of Paul Nathanson, with whom I have been corresponding intermittently on gender issues for well over a decade. His co-authored trilogy on contemporary misandry has been the source of many insights and much encouragement. Unfortunately, his path-breaking work has not garnered the recognition it deserves; indeed, Paul has met with the typical fate of male academics labouring to remedy the myriad errors of his feminist contemporaries: his academic career was prematurely terminated. Over the years, I have benefited from the (mostly unpublished) research and email correspondence of laymen who advocate for father’s rights, in particular: Brian Jenkins, George Piskor, Lucien Khodeir, and Peter Roscoe. Deprived of their proper role as fathers to their children, these men have invested tremendous amounts of time, energy, and intellect tabulating the results of court decisions and the effects of the child support guidelines. Anyone who conscientiously reads their materials could not fail to be impressed by the enormity of the bias faced by fathers in court. These men, working part time, put their full-time, politically correct, academic counterparts to shame. Finally, I would be remiss not to thank activist Jeremy Swanson and columnist Barbara Kay for their unwavering patience and encouragement during the writing of this book. Family law – the enterprise of making fathers pay for the privilege of having meaningful contact with their children taken away – is an utterly depressing subject.