After Leskun -- Now What?
Evita
continue with his spousal support payment to his wife who claimed that
she was so shattered by his infidelity that she was incapable of
earning a living, though eminently qualified.
"Misconduct, as such, is off the table as a relevant
consideration," wrote Justice Ian Binnie in the judgment, citing
clear provisions in the 1985 Divorce Act.
"There is, of course, a distinction between the emotional
consequences of misconduct and the misconduct itself," continued the
judgment.
"The consequences are not rendered irrelevant because of their
genesis in the other spouse's misconduct."
As a result, Sherry Leskun, now 59, will continue to receive $2,250 a
month in spousal support, and arrears dating back to March 2003.
Lower courts declared that Sherry was "bitter to the point of
obsession" with her former husband's infidelity and thus unable to
support herself. "Her life is this litigation," the B.C. Court of
Appeal ruled in 2004.
The couple has one daughter, and Gary helped raise two children of
Sherry's from a previous relationship. Sherry worked at a bank and
helped support her husband, seven years her junior, while he improved
his career credentials to become a Certified General Accountant.
Can we now, after Leskun, reasonably expect that judges will show as
much sympathy when men find themselves in similar situation?
Maybe, "similar" is a wrong word. After all, men not only have to go
through the trauma of being betrayed by their female partners, whom,
and whose children, they most likely supported during and after the
cohabitation, but many of them also have to cope with the fact that the
children whom they nurtured and loved as their own actually were
conceived during their partner's illicit affair(s).
Going by the evidence, the answer is "no". It seems curious that the
court, as well as the media, are turning a blind eye to the fact that
men whose lives have been shattered are ordered to pay child support to
children who were born to their philandering wives, not to mention
spousal support to the women who betrayed their trust.
To quote Barbara Amiel: "Today's real cutting edge philosophy is that
men and women are the same if being the same is an advantage to women
and they are different if being different is an advantage to women."
Family court judges are advised to "interpret" the law so that the
woman always benefits. "No-fault" divorce is a result of that
directive as most divorces are initiated and filed by women. The
result is that men lose everything, including their sense of self worth
and dignity. The result of that is that suicide is the leading cause of
death of Canadian men in their prime. Yet, the media hails Leskun v.
Leskun as a long overdue decision in fairness.
The Chief Judge of Nova Scotia, Constance Glube ruled in Fancy v.
Sheppard that mutual dependency between cohabiting partners is
demeaning to a woman, but that being dependent on a former husband to
whom she did not contribute anything in return, is not.
In this case a woman who was receiving spousal support under a
separation agreement, which was registered under the Nova Scotia Family
Maintenance Act, had remarried. That statute stipulates that the right
to spousal maintenance is forfeited where the recipient "remarries or
lives with another person as husband and wife."
Madam Justice Glube ruled that this violates both s. 7 and 15 of the
Charter. According to the learned judge, in order to preserve the
woman's independence and self respect, her former husband had to
continue to pay her spousal support though she had remarried. The
baffling part of the reasoning is that, according to the judge, "the
right to marry or cohabit is rooted in fundamental concepts of human
dignity, privacy [and]... personal autonomy, and accordingly are
aspects of both liberty and security of the person and protected by s.
7." She considered that the statutory provision was a restraint on the
right to remarry or cohabit, and not in accordance with the principles
of fundamental justice since it provided no judicial discretion to
assess the significance of the new relationship. The Court also ruled
that this legislative provision was based on "stereotypical"
discriminatory assumptions about female dependency and hence violated
s. 15 of the Charter. The judge mused that while the remarriage of a
recipient is a legitimate factor for a court to consider on a support
variation application, it should not be an absolute bar to support.
There is a presumptive mutual dependency and responsibility between
cohabiting couples. Therefore, it cannot be seen to be an expression of
a "stereotypically discriminatory assumption of female dependency" if a
woman is supported by her male partner while she cohabits with him. The
stereotypical dependency comes only when a woman depends on support
from someone with whom she no longer has a mutually supportive
relationship. If nothing else, the female partner is assumed to provide
companionship and comfort in exchange for financial support by the male
partner as long as the relationship lasts. Divorce is grated only when
the intimate relationship between the parties has ended, not when she
stopped washing his socks.
In fact, our entire system is designed to encourage women to cheat.
Even when proven to have committed perjury the most that a woman can
expect is a gentle slap on her wrist.
Section 95. (1)(d) The Family Relations Act on presumption of
fatherhood states that a male person is presumed to be the father if
the person was cohabiting with the mother of the child in a
relationship of some permanence at the time of the birth of the child,
or the child is born within 300 days after the person and the mother
ceased to cohabit;
Women can also double-dip. According to the child support guidelines,
obligation of the natural father and a parent in loco parentis are
joint obligations. "the obligations of parents, whether they be two
or twenty, towards a child are all joint and several. . ." [Kerans
J.A. in Theriault].
The then Director General, Strategies and Systems for Health
Directorate, Health Canada, Murielle Brazeau said: "Suicide is the
leading cause of death among Canadian males aged 10 years to 49 years.
Since the early 1990s, there have been significant increases in suicide
rates among youth aged 10 years to 14 years."[In: STANDING COMMITTEE
ON HEALTH, Tuesday, May 2, 2000].
Having said this, in the next paragraph she claims: "Nationally,
it's predicted that depression will be the second leading contributor
to the burden of disease in the year 2020. The impact of depression on
women will be far greater than on men. The proportion of families
headed by a single parent, for the most part women, has been increasing
steadily for at least 25 years. Single-parent families now account for
20 per cent of all families with children. This group shows more
depression, more distress and is lacking in social support"
Let's stop for a minute. The universally accepted truth is that
suicide is the final expression of depression so deep that the only
answer is death. Yet, Ms. Brazaeu, in her infinite wisdom, states that
women, whose suicide rates are one fifth of those of men, are the main
group that suffers from depression.
Not only are men many times more likely than women to commit suicide
after a divorce but they also suffer from other related consequences. A
new study has found that chronic work stress and divorce can be a
deadly combination for men. Researchers from the University of
Pittsburgh School of Medicine and the State University of New
York-Oswego studied data from 12,366 patients who participated in the
seven-year Multiple Risk Factor Intervention Trial. This study was
funded by the National Institutes of Health and was published in the
Feb. 11 issue of the Archives of Internal Medicine.
Some of my favourite examples of political (and judicial) double talk
are the following recommendations during the hearings on the Child
Support Guidelines in Canada.
These hearings, as well as the follow-up hearings on the Custody and
Access (some of which I attended as well) became virtual male bashing
orgies. It was so bad that during the Ottawa meeting even some of the
radical feminists had to spring to defend one distraught father's
right to free expression.
In her "SUMMARY OF THE CONSULTATION" to the Child Support Guidelines
(Canada), January, 1993, Murielle Brazeau (then at the Department of
Justice Canada) highlighted the following recommendations:
To begin with, Ms. Brazeau exhorts the Committee:
"The Canadian Advisory Council on the Status of Women's submission is
particularly impressive. It is clear that they have spent a great
amount of time, money and effort in analysing our reports. Also, the
Canadian Bar Association has submitted a radical approach to the
determination of child support which must be considered by this
Committee. It is suggested that besides reading all submissions, the
members may want to pay specific attention to those two submissions."
The recommendations by the Canadian Bar Association were that "Support
awards should seek to maintain the standard of living of the family,
rather than artificially treating the children as a unit separate from
the custodial parent".
The following exchange during the proceedings of the Standing Senate
Committee on Social Affairs tells it all:
Senator LeBreton: "When the courts decide these issues, how does the
mother's income factor into this? Who determines what amount the mother
will contribute?" --- Ms Brazeau (Dept. of Justice Canada): "The amount
that the mother is required to pay is presumed. There is a presumption
that she will pay what she can at her income level. If she earns more,
she will be pay more." [In: Social Affairs, Issue 3, Evidence.
Proceedings of the Standing Senate Committee on Social Affairs, Science
and Technology Issue 3 - Evidence. OTTAWA, Tuesday, December 16,
1997]
For the ultimate irony, the father is usually ordered to pay alimony as
well so that the mother can then be seen to contribute to the financial
support.
According to Abella J (then Ontario Court of Appeal, now at the Supreme
Court of Canada): "...Households tend to function as integrated
economic and social units. This makes it more reasonable to determine
what standard of living the household as a whole is entitled to enjoy".
In short, a man who has robbed of his children is expected to support
the entire household, including the mother's new partner, no matter
what their standard of living, where his children reside.
In 1999, Renu Mandhane, representing the Ontario Women's Justice
Network, wrote: "...Unfortunately, this bias (towards joint custody)
can have a detrimental impact on women and children by promoting the
rights of the father at the expense of the mother and weakening the
mother's financial situation post-divorce." [in: "The Trend Towards
Mandatory Mediation: A Critical Feminist Legal Perspective Executive
Summary" by Renu Mandhane, a University of Toronto law student, who
worked with METRAC/OWJN for the summer of 1999 as a Pro Bono Fellowship
Student]
So, there you have it from the horse's mouth: the support is for the
mother, not for the children. Ms Mandhane ignores the fact that sole
custody promotes the rights of the mother at the expense of the
children and the man who may or may not be their father.
Ms. Brazeau says that the Canadian Advisory Council on the Status of
Women (CACSW) recommended that [1.2] "Instead of the gender neutral
perspective on child-support policy adopted in the Discussion Paper,
the Family Law Committee must develop a gender-sensitive approach. Such
an approach would recognize, for example, that: -women and men have
different "minimum" needs because of systemic discrimination and
structural inequalities ... child support, custody, and spousal support
are interrelated issues".
Translation: Men's minimum needs are a sleeping bag in a street corner,
women's minimum needs are to live at the same standard as their now
discarded husbands provided for them.
In short, fathers who are robbed of their children and all of their
worldly belongings are told that they should not have a second family
if they cannot support it without reducing the support to their former
wives who may already be supported by new partners.
Another quote from Ms. Brazeau: "The British Columbia Branch of the
Canadian Bar Association recommends considering new spouse's income
where it reduces the non-custodial parent's living expenses or when
that spouse's income allows the payer to be unemployed or
underemployed. In cases where custodial parents have subsequent spouses
the Association recommends that their income should only be taken into
account to reduce the support award where the new spouse acts in loco
parentis and in doing so reduces the custodial parent's share of the
costs of raising the children."
Yet another: "One person fears that by requiring individuals to
contribute to the needs of a new spouse's children, we would impose an
unfair burden on all step-parents (unless they choose to adopt the
children) and that it would ultimately affect custodial parents'
chances of remarrying. Only where a person adopted their step-children
should they be required to contribute to their needs."
Interesting again. The non-custodial parent should be held responsible
for the custodial parent's ability to remarry at the expense of his
ability to remarry and to have a live-in family.
More of Ms. Brazeau's favourites: "The link between this issue and
that of the custodial parents non-financial contribution is being made
by some groups. For example, CACSW and other organizations recommend
[that] Unless the custodial mother is fully compensated for all her
direct and indirect, monetarized and non-monetarized child rearing
costs and contributions, no reduction in child support should be
allowed for joint custody or extended visitation arrangements ...Many
submissions recommend that no reductions be allowed in cases of joint
custody and extended access ...There are different justifications for
this position: negative impact on the child who would become a
bargaining tool, encouragement to seeking joint custody for financial
gain, danger that access parent does not exercise rights leading to
additional court costs, and the fact that if compensation is given for
access time, custodial parents would also have to be compensated for
time spent with their children.
My note: Sole custody is the bargaining tool for financial gain.
Ms. Brazeau: "A high number of submissions recommend that the
custodial parent's non-financial contribution be compensated through
child support. It is suggested that this compensation be dealt within
child support guidelines (not spousal support), that it is justified in
view of the self-sufficiency objective of legislation and that minimum
wage could be used to compensate these worked hours."
I.e. Besides paying child support, which is spousal support in
disguise, the non-custodial fathers should also pay a salary to the
women who stole their children from them.
Ms. Brazeau continues: "The B.C. Branch of the C.B.A. also suggests
that where the custodial parent does not work, this contribution could
be compensated by paying her the child care portion of the maintenance.
... Someone suggests that a way to compensate this contribution would
be by increasing the custodial parent's standard of living. This
approach would have the advantage of compensating the custodial parent
for lost opportunity costs as well as benefiting the children. ...The
CACSW considers that this contribution must be compensated, that
economic research must be conducted to evaluate this contribution and
that the access costs of non-custodial fathers cannot be compensated
until women are completely compensated for their non-monetary
contribution."
All the above recommendations were incorporated into the Child Support
Guidelines. The same misandrist principles are now applied to the
proposed Spousal Support Guidelines.
Who is cheating? According to the American bloodbanks, DNA tests show
that about 30 of contested paternity cases turn out negative.
In her article "Mommy's Little Secret" (The Globe and Mail,
Saturday, Dec. 14, 2002, p.F1
http://www.canadiancrc.com/articles/Globe_and_Mail_Moms_Little_secret...)
Carolyn Abraham wrote that Cheryl Shuman, director of genetic
counselling at the Hospital for Sick Children (Toronto), told that if a
paternity test turns out negative the results would be dismissed as
"uninformative". She also cited an example of one case where the
DNA test found three fathers for the four daughters whom a man believed
to be his.
Dr. Judith Lipton (Swedish Medical Center in Washington) says:
"Reproductive deception is morally similar to rape. If you trick
someone into raising a baby not his own, and he puts 20 years of his
life into an endeavour based on a falsehood, that is appalling. ... If
I were the queen of the world, birth control, of any form, would be
available to any woman who wants it and DNA testing would be available
for all the men so that they would know who their babies are."
Bernard Dickens, a specialist in health law and policy at the
University of Toronto, said that Canadian courts would discount DNA
evidence over the best interests of the child. However, case law shows
that the "best interest of the child" dogma is only applicable when
it is synonymous with the "best interest of the mother".
In a widely reported U.S. case Morgan Wise found that none of his three
sons were his. However, the judge ordered him to pay child support for
all of them after his divorce. When he went to the press the judge,
angered, upped his payments and stopped his visitation rights to the
children. So much for the "best interest of the child".
In the early 1970s, 30 per cent of students at an English school
discovered their dads were not their biologically fathers after their
teacher assigned a science project in which his students were to find
out the blood types of their parents. "The classroom was, of course,
not the ideal place to find out this information," said Prof. Dickens,
who is often consulted on ethical issues by geneticists at the Hospital
for Sick Children. According to Prof. Dickens, "Fatherhood is a social
reality, not a genetic reality ... It's not for geneticists to spring
this information [i.e. paternity fraud] upon them. The point is, when
you are testing for a particular trait, it's either there or it's not
there, and there is no need to say why it is or why it isn't."
Ms. Shuman, at the Sick Children's Hospital, recounted that a father
who tested negative for a gene that "his" sick child had inherited was
led to believe that he was the biological father and thus a carrier of
the genetic disorder. When, after his divorce, he wanted to have a
child with his new partner he asked to be retested. In order to keep
him in the dark about the paternity of the child for who he was paying
support Prof. Dickens suggested that he should be told that testing him
again would be a waste of time and that his new partner should be
tested instead.
Ethical? Hardly. Bringing justice to disrepute? Definitely. Ms. Shuman
commented: "He hasn't come back in yet, but we may have to reveal the
results . . . It all gets messier than you might think. Welcome to my
ethically charged world."
In 1999, a questionnaire in Britain found that most women tended to be
unfaithful to their long-term partners around the time they were most
fertile.
That same year, researchers at St. Andrew's University in Scotland
concluded that women seem to desire different types of men at different
times of the month. When they are most likely to conceive, they are
attracted to men who have very masculine features, preferring more
feminine men when they are not ovulating. The researchers suggested
that women may subconsciously feel that beefy men may make a better
biological contribution to a baby, but softer features may signal a
better father.
Hopefully all the men who are still alive and whose lives have been
destroyed by the corrupt courts will now demand that their emotional
trauma will also be acknowledged. Even if they cannot expect
compensation, at least they should be delivered from the burden of
supporting their abusers.