Fathers fight for rights

Long before extreme publicity stunts became standard practice for fathers' rights activists, Steve Osborne embarked on a cross-Canada journey, parading in front of the country's courthouses wearing a flowery dress. He carried a placard that read: "Now can I be a parent?"

"The main problem is there isn't a presumption of equal parenting when parents go to court to fight about custody," so mothers too often get sole custody, says Osborne, a New Brunswick father who lost access to his two children in 1999 and has not seen them since.

"Most men say there's no point in fighting, so the easiest thing to do is say: 'Yes, dear, you can have whatever you want.' And they save themselves the heartache."

Today, Osborne is national co-ordinator of the Canadian chapter of Fathers 4 Justice, a brash British group whose members made headlines by donning superhero costumes to scale Buckingham Palace and pelted Prime Minister Tony Blair with a flour-filled condom.

In Montreal, Fathers 4 Justice members made a splash last month. One dressed as Spider-Man scaled the cross atop Mount Royal; another climbed the Jacques Cartier Bridge decked out as Robin, Batman's sidekick.

No Fathers 4 Justice stunts are planned for today, Father's Day, Osborne says. "This is the one day of the year when a dad can almost be certain he's going to get to see his kid."

Fathers' rights activists say the courts discriminate against dads, unfairly favouring moms in custody battles in divorces and common-law break-ups.

Groups such as Fathers 4 Justice and Quebec's L'Apres-rupture rhyme off grievances: the system makes it difficult for them to get custody; allows mothers to ignore custody and child-visitation judgments with no repercussions; and hurts children by alienating them from fathers. They want the law changed to force judges to presume shared custody is the best choice, barring evidence to the contrary.

But fathers' groups get little backing from legal experts and divorce lawyers. Some of their gripes were valid 10 years ago, these observers say.

But emphasis has since shifted radically so that today, fathers willing and able to care for children can and do get custody. If a father fails to get custody, there's usually a good reason, they say. Mediation is also increasingly helping avoid bitter custody battles.

The past 100 years have seen major changes in how society views children's relationships to their parents, says Nicholas Bala, a Queen's University law professor who has studied the evolution of family law.

In the 19th century, dads were considered their children's owners. Then, for most of the last century, moms almost always won custody. But beginning in the 1970s and accelerating in the 1990s, judges have increasingly been basing decisions on the child's "best interests," with an emphasis on shared custody.

"We've had a tremendous increase in various forms of joint custody," Bala says. "And we've had a very significant increase in involvement of fathers in the lives of children post-separation, but that doesn't mean they're all seeking or getting custody."

It's easy to lose sight of the fact that in most break-ups, custody is not a contentious issue.

In about 80 per cent of cases in Canada, the two parents come to an amicable agreement, says lawyer Michel Tetrault, a Universite de Sherbrooke professor and expert on custody issues and statistics.

Back in the mid-1990s, judges opted for sole mother custody in about 80 per cent of cases, sole father custody in 10 per cent and joint custody in the rest.

Times have changed. Today, shared custody is the favoured recipe in 60 per cent of cases, Tetrault says. Moms get sole custody 30 per cent of the time and fathers in 10 per cent of cases.

"When you have two parents with the same parental capacity, almost the same availability, who live not too far away from each other and who are able to communicate a bit, in most cases you're going to get shared custody - even if the mother objects," Tetrault says.

Father activists, however, point to other stats they say prove men are being wronged.

They note that, overall, 80 per cent of kids from broken homes now live with their moms. They say that's partly because fathers acquiesce after being warned they can't win in court.

"Custody normally goes to the mother because we start from the strange premise that the child should go to the parent who took care of the child the most before the divorce," says Jean-Claude Boucher, president of L'Apres-rupture, which counsels 1,200 divorced and divorcing dads annually.

"This sounds logical and everybody applauds but when you think about it, the link between mother and child isn't the same as with father and child. The father is more distant but his role is just as important."

A mother nurses the baby and puts him to bed but "the father wasn't out at the tavern during this time; he was taking care of his family in other ways - as a guide to the child rather than as a caregiver - but that part of parenting is ignored by the courts."

Most men who seek help from L'Apres-rupture "are frustrated and discouraged because they want reasonable access to their children," Boucher says. "They say, 'These are my children; another man is raising them; I see them every second or fourth weekend. ... It doesn't make sense - I'm not their uncle, I'm their father.' "

Dads and kids can't bond if they only meet two weekends a month, he says: "I don't want to be sexist, but a woman, traditionally, has a lot of emotional intelligence and a man, traditionally, has a lot of mental intelligence. Kids needs both."

Men's rights campaigners complain that even when shared custody is granted, more often than not the mother has the kids for more days, leaving kids more attached to mom than dad.

And, says Osborne, of Fathers 4 Justice, mothers use the fact that they are in the kids' primary residence to obstruct dads. "She makes the decision that, no you don't get to see your kids today, then the police don't enforce a court order, then it takes six months to go through the courts and the mother is never punished," he says. Fathers' groups also complain mothers often make false accusations about abuse or neglect.

But Tetrault, of the Universite de Sherbrooke, counters that it's rare today for moms to ignore access orders or file fraudulent charges. Why? Because such tactics backfire.

"When you have a parent that for any reason tries to block the child from seeing the other parent with no good reason, it could have the effect of giving the other parent" more access, he says. "You're going to have a very hard time with the judge because they don't accept this kind of behaviour."

One of the reasons judges now favour shared custody in the first place is that studies show that three to five years after a break up, many fathers don't see their kids as much as they have a right to. In most cases, mom isn't to blame. Rather, it has to do with fathers not being able to bond with children when they are only seeing them two days out of every 14, Tetrault says. That's why judges won't stand by and allow one parent to manipulate the system to block the other parent's access, he adds.

There can be cases where parents face unfair hurdles in custody cases, divorce lawyers say.

For example, if a parent doesn't seek custody early in the process, he or she may be left in the lurch later, says Montreal lawyer Julie Kidd, a family law specialist. In the first few weeks of a divorce, a parent can ask for an emergency temporary-custody order. In 70 per cent of cases, the parent who wins here also gets permanent custody.

Often the party who cares for the kids on a more regular basis will be the one who stays in the family home. Usually that's the mother. If she asks for an emergency order and the father doesn't object at the time because, for example, he doesn't have an appropriate residence, the wife will likely get custody, Kidd says.

"Unfortunately, not everybody is level headed when they get a divorce," she says. "Often they are people in crisis who aren't necessarily thinking clearly or thinking long term. One spouse is in a state of shock because his or her spouse has told them their marriage is over and they don't turn around fast enough."

Lawyer Andrew Heft, another Montreal family law specialist, says some judges favour mothers over fathers - and vice-versa.

"Some judges bring their own personal baggage to the bench," he says. "It's known in the legal community that there are some judges considered so-called men's judges and some judges considered women's judges, meaning they tilt more towards one side than the other."

Even Michele Asselin, president of the Federation des Femmes du Quebec, the province's largest women's group, agrees there can be "cases of injustice" involving fathers unfairly treated by the system.

But the fact that most couples agree on custody shows the system works, she says. "You can't use some isolated cases to say the system has a built-in bias against fathers," she says.

Father's groups have long lobbied for a change in the law to avoid any bias in the system.

Telling judges to focus on "the child's best interests " sounds noble but that gives judges too much leeway, says Boucher, of L'Apres-rupture. "Now, judges calculate the best interest of the child is to stay with the mother because she was the main caregiver. Until we realize the importance of the father's role, men won't get custody. Now we say he didn't breast-feed so he's no use, he doesn't serve a purpose."

Legally favouring shared custody would change that, Osborne says. "If we create the presumption that when two parents go to court to fight, they're each going to come out with half, there's not going to be much fighting anymore," he says. "That also eliminates the profit from family law," he adds, complaining that in the current system lawyers and psychologists have a vested interest in prolonging divorces and making them very confrontational.

But Ottawa has twice studied and rejected the idea of adding a shared-custody presumption to the law.

"If the two of you can't work together, if you're going to have to have a trial, if you're going to sit there and go through what is inevitably a very negative process and you can't agree, maybe joint custody is not appropriate," says Bala, the Queen's law professor.

Asselin, of the women's federation, also insists judges should look at a child's interest above a parent's, "while favouring participation of both parents" and taking into account the fact that over the past 30 years, fathers have "taken a bigger and bigger role in the education of their children." There "can be all kinds of custody models, and obviously shared custody is a very positive one - if it's applicable."

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Court custody battles are ugly, drawn out and pricey, so allegations of bias aren't surprising.

"Separation and divorce are emotionally and financially a traumatic experience," Bala says. "Some men can get past the anger, guilt, bitterness and betrayal and have a constructive relationship with the person they had a child with and have a really good relationship with the children, but often there are mixed emotions."

Bala notes divorces are the biggest source of complaints against judges, lawyers and psychologists. "Very, very few people have the maturity to go through a trial about custody, lose that trial, then say, 'You know, I think the judge was right,' " he adds.

The good news: Progress is being made on taking the acrimony out of the process. Quebec is a leader in encouraging mediation before or instead of court. This can be cheaper, faster - and less harmful to children.

"I always tell clients: Once you go to court, you surrender control to one person - the judge," Kidd says. Another option - judge-facilitated mediation - has helped settle some of her most contentious cases. "It fulfills the needs the parties have to say their spouse is an a--hole and all that," Kidd says. "Once they've said that to someone in authority, that liberates them to be able to sit down and negotiate."

ariga@thegazette.canwest.com