FATHERS’ RIGHTS, FEMINISM AND CANADIAN DIVORCE LAW REFORM: 1998–2003

Date21 June 2005
Published date21 June 2005
Pages29-63
DOIhttps://doi.org/10.1016/S1059-4337(04)35002-7
AuthorRuth M. Mann
FATHERS’ RIGHTS, FEMINISM AND
CANADIAN DIVORCE LAW REFORM:
1998–2003
Ruth M. Mann
ABSTRACT
This chapter addresses a five-year phase of protest activity set in motion
by fathers’ rights and shared parenting groups’ resistance to the Federal
Child Support Guidelines, which were incorporated into Canada’s Divorce
Act in 1997. Drawing upon Department of Justice discourses, parliamentary
hearings and debates, and advocacy websites it examines the dynamics and
outcomes of the protest cycle. It argues that the government’s legislative
response signals a failure of fathers’ rights activism in Canada. This failure
is a consequence of the collective identity that advocates and their supporters
enact and celebrate in various public arenas, the effectiveness of feminist
counteraction,andthecontingenciesof governance in Canada’s left-of-centre
advanced liberal democracy.
This chapter addresses a five-year phase of protest activity (1998–2003) set in
motion by fathers’ rights “agitation” (SJC 1998: No.19) against the 1997 Federal
ChildSupport Guidelines, action that ushered ina series of governmental responses
leading up to and including Bill C-22, An Act to Amend the Divorce Act (House of
Commons of Canada, 2002). As stated in various Department of Justice texts, Bill
C-22 and the larger Child-Centred Family Justice Strategy in which it is embedded
Studies in Law, Politics, and Society
Studies in Law, Politics, and Society,Volume 35, 29–63
Copyright © 2005 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(04)35002-7
29
30 RUTH M. MANN
aim to focus parental and judicial attention exclusively on parents’ responsibility
to ensure that child custody, child access, and child support arrangements are
in children’s best interests (Department of Justice, 2002a). From the perspective
of fathers’ advocates, however, this policy response “really” aims “to eliminate
fathers from their children’s lives, to remove the control of parents, and to allow
the government to more fully dip into the assets of the family for disbursement to
thelawyers, bureaucrats and the othervultures called ‘professionals’ inthe Divorce
Industry” (FACT website).
Building on the work of Susan Boyd and Claire Young (2002), who used
publicly archived policy debates from 1966 to 1993 to answer questions of who
influences divorce law reform in Canada, and how the specifics of legislation are
shaped by this influence, I examine fathers’ advocates’ assertion that family law
has “yet again” been “hijacked” by feminism. As Boyd and Young document,
five grassroots groups and one impassioned parliamentarian, Senator Anne Cools,
introducedCanadianpolicymakersto fathers’ rights advocacy in the 1985 Standing
Committee on Justice and Legal Affairs, where the provisions of the 1986 “child’s
best interests” divorce law regime were negotiated.1In these hearings, fathers’
advocates argued that the only way to end discrimination against fathers and
safeguardtheir “inalienable rights as aparent” was through a statutorypresumption
of joint physical and legal custody, backed by mandatory mediation. Theyargued,
as fathers’ advocates continue to do, that this solution would reduce or eliminate
problems of child poverty and youth delinquency rooted in father absence,
problems of domestic violence rooted in spousal conflict, problems of male suicide
rooted in paternal depression, and problems of support default rooted in the
legislatively created “need” for gender-discriminatory and greed inciting “wealth
transfers” (see Soever,2002: FACT website). Drawing on anti-feminist discourses
employed by fathers’ groups in Canada and the U.S. (Bertoia & Drakich, 1993;
Clatterbaugh, 2000; Coltrane & Hickman, 1992; Crean, 1988; Messner, 1997;
Williams & William, 1995), and pro-family women’s groups in Canada (Erwin,
1993), they demanded an end to systemic “gender bias” and “persecution of men.”
Especially, they demanded an end to government funding of support services,
advocacy, and research “for women,” including specifically Status of Women
organizations established in the early 1970s at federal and provincial-territorial
levels to monitor and promote the advancement of women in Canadian society
(Walker, 1990).
As Boyd and Young (2002) document, these fathers’ rights arguments had a
“huge impact” on parliamentarians. However, it was the “reasonable” counter
arguments of the two Status of Women groups that proved, in the end, more
persuasive. Boyd and Young report that in contrast to the “hostile” and “vitriolic”
tone and argumentation of their self-proclaimed opponents, women’s advocates
Fathers’ Rights, Feminism and Canadian Divorce Law Reform 31
advanced a “neutral,”“non-partisan,” and indeed a “father-supportive” child’sbest
interests position. They agreed that children benefit when fathers are more fully
involved in parenting and did not, before the committee or in their written briefs,
oppose “maximum contact” and “friendly parent” amendments. Consistent with
the importance women’s advocates assign to primary caretaking, however, they
opposed mandating or presuming joint custody or mediation, which women’s
advocates continue to insist are only appropriate when mutually agreed upon.2
It is this, from a fathers’ rights perspective, feminist position that is enshrined
in the “remarkably flexible” (Family Law Committee, 2002) 1986 Divorce Act.
The Act allows but does not presume or prefer joint custody and encourages but
does not mandate custody mediation, both of which are, increasingly, the norm
(Boyd,2003a;Statistics Canada, 2004a). In recent years,moreover,the purportedly
offensive and antiquated language of custody and access has all but disappeared
from negotiated agreements, though these terms are imposed when parents cannot
or will not arrive at a custody arrangement except by court order. Importantly,
regardless of how child custody is termed or operationalized, the 1986 Act’s
maximum contact and friendly parent provisions encourage and ensure, at least in
theory, regular contact with both parents. Even a parent found guilty of abuse is
afforded supervised access in all but the most dangerous or unreasonable of cases
(Boyd, 2003a).
These trends notwithstanding, fathers’ advocates maintain that the situation of
non-custodial parents has steadily worsened since the introduction of the 1986
Divorce Act. This worsening, they argue, is due to judges’ persistent refusals
to enforce access orders, the increased weight of family violence accusations in
custody and access determinations, and the “draconian” imposition of “exorbitant”
child support obligations on fathers even when they “win” joint custody, which
rarely translates into an equal sharing of parenting time and responsibility (see,
for example, Millar & Goldenberg, 1998). Fathers’ advocates maintain that these
practices turn fathers into “wallets.” Worse, in violation of the International
Convention on the Rights of The Child, to which Canada is signatory, they deny
children their natural right to and need for both parents.
As I will demonstrate, Bill C-22 is similarly shaped by fathers’ rights advocacy.
The majority Liberal government of Jean Chr´
etien opted, however, not to “cave
in” to what feminists have compellingly named “a crass and openly self-
interested fathers’ rights agenda” (OWNCCA, 2001). My analysis of how and
why the Chr´
etien government came to reject fathers’ rights demands draws upon
governance discourses that posit an advanced liberal state and its responsibilizing
agenda as the target, facilitator,and arbitrator of social movement outcomes (Hunt,
1999; Rose, 1999). This analytic approach is particularly salient in the case of
Canada, where the development and reform of law and policy is construed as

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