Fathers hindered by traditional views of gender roles in custody disputes

By Staff

Fathers face an uphill task to maintain equal custody of children ahead of trial, Toronto family lawyer Gene C. Colman tells

In interim custody and access cases, case law directs judges to maintain the status quo until trial, unless it can be shown that the best interests of the children require a change.

However, Colman, principal of Gene C. Colman Family Law Centre, says persisting traditional views of parenting roles mean mothers are still more likely to end up with a greater share of custody before the matter gets to court.

“Historically, the default position has been that a young child will stay mostly with the mom, and will spend some time with dad. People generally don’t question it,” he says. “Gender should not make a difference, but unfortunately it does in practice, because of myths and stereotypes with respect to fathers.”

But Colman says there are signs that attitudes are changing. In one recent case, a judge split the parenting time of a three-year-old girl between both her parents, despite the mother’s insistence that she was the primary caregiver.

“In these circumstances, I do not consider the ‘status quo’ as asserted by [the mother] to be determinative,” Ontario Superior Court Justice Danial W. Newton wrote. “I conclude that it is in [the daughter’s] best interests that her parenting be shared equally by her parents.”

Colman says counsel for fathers should use the case as a template for tackling interim motions for custody, noting that the father in the case provided affidavits from nine people, including friends and the child’s daycare provider to boost the case that he took an active role in his daughter’s life.

“Fathers need to provide more evidence. It’s not enough for a dad to say they got up every morning, bathed the child and took her to daycare. That may very well be the truth, but you’ve got to prove your case,” he says. “This sort of result should be the norm, but for now, it’s a little startling.

“My plea is for is lawyers representing fathers in situations like this to do a thorough analysis of the factual situation on the ground, and characterize your case as a preservation of status quo,” Colman adds.

He says a presumption of equal shared parenting (ESP) would help ease the burden on fathers in custody disputes, noting that social science research supports it as the best situation for children following a marital breakdown.

Colman says another lesson for recently separated parents is to avoid large unilateral changes to the status quo. In a case from late 2016, Justice Alex Pazaratz ordered equal shared parenting time after the mother attempted to move their child from Hamilton to Niagara-on-the-Lake.

“Parents should think twice about trying to move a child to another city in the middle of a custody dispute. In any contest between ‘best interests of the child’ and ‘fait accompli’ — best interests will always prevail,” Pazaratz wrote, ordering the child to be enrolled in a school near the father’s residence.

“The status quo is important, and parents who violate it without court permission, should be cautioned against that kind of action,” says Colman, who adds that Pazaratz’s judgment has already been cited approvingly in at least four more cases since it was issued.

“If there is an emergency or a risk of violence, then there is a remedy: you can go to court without notice,” Colman adds. “But judges do not like people taking the law into their own hands.”

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