The ‘inverted justice’ of Canada’s family courts and how they got this way

Posted on April 7, 2017 in Child & Family History – Full Comment

Their names, or parts of their names depending on how young are their kids and how delicate the reporter, pop up in the mainstream press now and then.

I wrote about one such man last month, Jeramey A., who rigged his truck so that when he drove down an embankment his neck would break.

A Toronto Star colleague, Joe Fiorito, now retired, wrote about another in 2010 – Frankie Robertson, who also killed himself, another man ruined by the family law and child support enforcement systems in this country. Barbara Kay of the National Post wrote about Paul Donovan the same year; he lay down in the path of an oncoming train.

But the names are blips.

The conventional reaction to these stories is akin to those about men who are falsely accused of sexual assault, yet left with reputations in tatters.

Few have the appetite to discuss the wrongly accused sexual offender.

The usual response is, too bad so sad, but what about all the women who are sexually assaulted, who don’t even feel comfortable reporting to police? Ditto with fathers who are driven to suicide: Too bad so sad, but what about all the deadbeat dads? What about all the men who ignore their child support obligations?

Bigger questions — such as, to borrow from Once in a Lifetime by the Talking Heads, “Well, how did we get here?” — are rarely even asked.

But a handful of scholars and academics have looked at the family law system, the mandated Federal Child Support Guidelines and the enforcement agencies of government. They have found them all sorely wanting.

I refer to the work of Paul Millar, associate professor in the school of criminology and criminal justice at Nipissing University; his colleague there, economics professor Christopher Sarlo (also senior fellow with the Fraser Institute); Anne Gauthier, adjunct professor of sociology at the University of Calgary; Doug Allen, economics professor at Simon Fraser University.

Until 1968, when Canada got its first divorce law, the field of family law was very small, but according to Punishing Our Way Out of Poverty: The Prosecution of Child-Support Debt in Alberta, a 2010 paper by Millar, in the 1980s and ’90s, there was a perfect storm of change.

Legal feminism was increasingly informed by radical feminism; divorce came to be seen as a source of women’s poverty; family law had blossomed as a proper branch of practice; the Canadian Charter of Rights and Freedoms “opened the door to greater legal and judicial participation in the formation of social policy,” as Millar wrote.

In that climate emerged a social policy aimed at reducing poverty by focusing on private responsibility.

“The new view laid the blame for poverty at the feet of former husbands, a dynamic that appealed to conservatives and to some feminists who might otherwise have been inclined to see a more public, social solution to poverty.”

(Influential in all this was the 1985 book The Divorce Revolution by Lenore Weitzman. The book was later revealed to contain significant numerical errors that greatly exaggerated the differences in standards of living between husbands and wives after divorce.)

In 1990, the federal justice department published a detailed study of divorces. It examined 1,310 divorces across the country, interviewed 617 people, and found that the majority of both custodial and non-custodial parents were satisfied with the amounts of child support awarded.

The DOJ ignored what their subjects told them – including that they believed child support was warranted, spousal support was not – and against the advice of its own outside consultants, concluded support needed to be ramped up (and that there should be more spousal support).

In 1997, the federal guidelines were passed, and though they are too complex for me to explain here, they’re also fatally flawed, based solely on the payor’s income.

Getty ImagesUntil 1968, when Canada got its first divorce law, the field of family law was very small, but according to a 2010 study, in the 1980s and ’90s, there was a perfect storm of change.

As Allen once said in an affidavit prepared for court, they were “created to transfer amounts of wealth from non-custodial homes to custodial homes. Virtually every choice made in their construction … leads to a net transfer.”

Overwhelmingly in this country, in contested proceedings, women get custody of the children; thus, overwhelmingly, they are the custodial parent. As Allen wrote once, “the evidence suggests that rather than being designed for the interests of children, the Guidelines were designed for the interests of mothers.”

And it’s not like support has worked to bring women and kids out of poverty; in fact, they disproportionately punish poor men from the margins. What’s more, they’ve resulted in new “debtors’ prisons.”

As Millar wrote in The Prosecution of Child-Support debt in Alberta, “child and spousal support … are private debts for which incarceration is a consequence of non-payment.”

He studied information on 398 people, almost all men, who were jailed in Alberta from 1986 to 2006; the mean time in custody for an offence under the Alberta Maintenance Enforcement Act (every province has a similar agency; Ontario’s is the Family Responsibility Office) was 28 days.

These agencies can also suspend driver’s licences, impose fines, seize passports, and the debtors have little procedural protections. As Millar concluded, “… the standard of proof is lower than for civil process, yet the penalties are more severe than those for some criminal offences.

“I call this regime inverted justice, since the protections are all for the advantage and convenience of the state, rather than of the individual.”


Tags: , , , , , , ,

This entry was posted on Friday, April 7th, 2017 at 10:46 am and is filed under Child & Family History. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

One Response to “The ‘inverted justice’ of Canada’s family courts and how they got this way”

  1. So what can I do???
    My ex-wife make more than twice what I do, she is married, her parents and her husband’s parents are millionaires, and I am alone, and make around $70K a year (that is correct, she makes over $155K/year).
    She will not allow me to see my children which is completely against the agreement we signed. After 9 years of paying support and one year of not being allowed to see my children, the FRO is threatening to take my licence and my passport.
    They did not check to see if she abides by the agreement, they are only concerned with money.
    So what can I do?? Nothing! i have no rights! I am a non-human! They would all rather I die, than go without a few thousand dollars which will barely be noticed by my ex-wife, but will put me in debt for years to come.


Leave a Reply