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Judge not, lest ye be judged

In family courts across the land, judges hold effectively the same powers over separated parents as feudal lords held over their serfs, and it pleases them to exercise this power without much restraint.

Grant Brown - June 15, 2008

Superior Court Justices in Alberta are referred to as “My Lord” and “My Lady.” This is no empty formalism. It is not a quaint anachronism left over from a bygone era. In family courts across the land, judges hold effectively the same powers over separated parents as feudal lords held over their serfs, and it pleases them to exercise this power without much restraint.

A perceptive cultural anthropologist studying Canadian family courts in the 21st century would notice a second feature reminiscent of feudal society: the inveterate chivalry that pervades the entire family-law system. Our Lords and Our Ladies reflexively defer to women in court, especially mothers. Motherhood is sacred; the role of our noble knights in shining armor on the Bench is to protect it at almost any cost.

Gender-based inequality in the application of the law by all-powerful judges results in a drastic loss of freedom in the lives of fathers who have the misfortune to become estranged from the mothers of their children. This disenfranchising of fathers follows immediately upon separation, in most cases at the instance of the mother, and regardless of whether or not the father had done anything wrong – legally, morally, or prudentially. Most importantly, it has terrible long-term consequences for the children of these broken homes.

Judges need to be held to account for their role in the destruction of families. They in effect usurp the role of the natural father in a child’s life by routinely evicting fathers from their own homes as soon as the mother wants a separation; by giving sole custody or “primary care” to mothers as a matter of course; by refusing to enforce even the meager and insulting “visitation” orders they issue to fathers; and by burdening fathers with sometimes crushing but almost always substantial child support and alimony awards.

Post-separation, fathers are ushered to the back of the bus, to be obedient, second-class parents. In favourable cases, they retain a kindly avuncular status in their child’s life; in less favourable cases, they are reduced to the psychological state of an automatic teller machine. By actively assisting to push fathers to the sidelines of their children’s lives, judges go a long way toward creating “deadbeat dads” out of ordinary, loving fathers.

Some Canadians are concerned about the fact that we have no constitutional protection for property rights. The Crown is the “ultimate owner” of all land in Canada, and your title to it is merely a grant of permission to use it that could be revoked, without compensation, at any time the government chooses. In my view, this is a valid concern, although it must be said that the absence of property rights in the constitution in practice affects only a relatively small number of Canadians, once in a while.

What most Canadian men should be more concerned about is that they have no constitutional protection for their parenting rights. The courts are the “ultimate legal parents” of all children in Canada, in basically the same sense that the Crown is the “ultimate owner” of all land. But as a practical matter, your care and control of your children is at much greater risk of being taken away by the courts than your property is to be confiscated by the government. And whereas the government is likely to compensate you for the property it expropriates, the courts are almost equally certain to make you pay for the privilege of not raising your own children.

Do I exaggerate? Hardly. In 2003, Liberal Justice Minister, Martin Cauchon, felt he could state without fear of political repercussions that “Parents have responsibilities, they don’t have rights.” Last year, in a widely followed Saskatchewan case, a newborn infant was adopted by an unrelated couple against the wishes of the biological father, who was willing and able to care for him. This case was not unique by any means.

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