Alleged Gender Bias and Family Court

One issue that comes up very commonly in the “men’s issues” movement is an alleged bias in the Family Court system. Some men maintain that women are awarded custody, alimony/spousal support and/or child support more often and in higher amounts than themselves for no good reason.

Custody

A Bias in the Law?

The Department of Justice, in their 2002 report “Putting Children First” noted their opinion that there was no bias on the part of the legislation itself, while also conceding “while the law may be gender neutral, in a majority of cases the mother is a sole custodian or, in a joint custody arrangement, she is the primary caregiver with the father having the role of an access parent.”

This report goes on to state “There is no reason to believe that this gender differentiation is a result of systemic bias in the Canadian courts. It is more likely that in the vast majority of cases the parties have themselves agreed on this arrangement. The social realities or parents’ perceptions regarding parenting roles may be responsible.”

As the “tender years” doctrine (which stated that mothers should be the sole breadwinners) has fallen out of favour in place of the “best interests of the child” doctrine, at least on paper, one can assume that there is no de jure bias in the laws as written. As judges still have control over awards, however, bias may still exist.

Prevalence of Sole Mother Custody

The most common point brought up is that women are often chosen as the custodial parent when a relationship dissolves. The research seems to indicate that this is true.

A research report by Le Bourdais, Juby & Marcil-Gratton (1999) notes the following breakdown of custody:

  • 81 percent sole mother
  • 7 percent sole father
  • 13 percent shared custody

This suggests that while the majority of the time the woman is awarded custody, there is no information provided about the way that custody was determined. For that information, we turn to the National Longitudinal Survey of Children and Youth (NLSCY).

The NLSCY, recorded in a Department of Justice report (2000) notes that in 1995, slightly more than half of relationships (52%) where custody was established did not involve a court order. This may suggest that men are choosing to give up custody voluntarily. The same report, however, also notes that in cases where a court order did exist, almost 80% of the time a court order was established, the mother was granted sole custody.

The large mother sole custody number drops slightly (but still substantially) when the child gets older, with 80.6% of mothers of children 0-5 being given sole custody, while only 74% of mothers of children 6-11 did.

Another interesting element from this survey is that contact with fathers drops the longer the relationship has been broken up. I won’t speculate on the reasons for this.

Two questions that I don’t believe have existing data to answer them include whether men apply for custody less often, and whether men win custody more often when they apply for it.

One argument is that men are counselled by family lawyer they are unlikely to win if they do apply, and secondly that only those with so-called “slam dunk” cases will even bother. This could explain some of the disparities claimed in other countries where men who ask for custody are more likely to win than women — but where men simply don’t contest custody.

Alimony / Spousal Support and Child Support

Alimony or spousal support is money that is paid to a spouse (an ex-husband or ex-wife) after a divorce. It is usually time-limited, and designed to compensate the spouse who gave up earning power during the marriage (often to raise children.)

Kelly (2013), using data from the 2011 General Social Survey noted that 96% of spousal and child support awards in Canada were paid by the father to the mother. This is interesting when you consider that according to the US Bureau of Labour Statistics (2013), 38% of women outearned their husbands. Similar numbers are reported in Canada (Sussman & Bonnell, 2006) and England. (Ben-Galim & Thompson, 2013)

Despite men being eligible for spousal support, it is awarded less often. It’s unclear from the research whether this is the result of men not applying for alimony or spousal support – or whether judges, who have significant discretion over awards, are choosing not to give it to men.

Bibliography

Ben-Galim, D., Thompson, S. (2013) Who’s Breadwinning? Working Mothers and the New Face of Family Support. Institute for Public Policy Research.

Labor Force Statistics from the Current Population Survey. Bureau of Labour Statistics. (2013) Accessed electronically on Nov  2, 2015 from http://www.bls.gov/cps/wives_earn_more.htm

Selected Statistics on Canadian Families and Family Law: Second Edition. (2000) Department of Justice. Accessed electronically on Nov 2, 2015 from http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/stat2000/index.html

Final Federal-Provincial-Territorial Report on Custody and Access and Child Support: .Putting Children First. (2002) Department of Justice. Accessed electronically from http://justice.gc.ca/eng/rp-pr/fl-lf/famil/flc2002/pdf/flc2002.pdf.

Kelly, M.B. (2013) Payment patterns of child and spousal support. Juristat. Accessed electronically on Nov 2 2015 from http://www.statcan.gc.ca/pub/85-002-x/2013001/article/11780-eng.htm.

Le Bourdais, C., Juby, H., Marcil-Gratton, N. Keeping Contact with Children: Assessing the Father/Child Post-separation Relationship from the Male Perspective (1999) Department of Justice. Accessed electronically on October 21 from http://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/2000_3/pdf/2000_3.pdf.

Sussman, D., Bonnell, S. (2006) Wives as primary breadwinners. Perspectives on Labour and Income. 7(8)

Cite this article as: MacDonald, D.K., (2015), "Alleged Gender Bias and Family Court," retrieved on April 24, 2018 from http://dustinkmacdonald.com/alleged-gender-bias-and-family-court/.

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