Will Tie Domi be frozen out? Guilt before innocence the norm in matters of the family

I keep thinking I will be able to wind down on this theme. Unfortunately, new "garbage" seems to surface almost every day. Again yesterday, my social justice alarm went off and you get to read about it today.

Was anyone else not surprised to hear that Leanne Domi, seems to be doing everything the law will allow to destroy her soon to be ex-husband, former NHL hockey player Tie Domi. I'm not! And, she has many weapons at her disposal because of fundamental and inequitable flaws in family law.

In September I wrote a post when the story broke explaining how gender bias within the judiciary in Ontario's family courts could destroy Tie Domi. Now Leanne Domi is doing what so many persons do within a biased system (with their lawyers encouraging them) while they are still very angry. She is making allegations that are putting in question Tie's relationship with his children. CTV reports:

According to the documents, Leanne's lawyer is seeking an order "suspending (Domi's) access to the children, pending delivery of recommendations by the psychologists."

Leanne Domi seems to be using her dispute with Tie to go after her children's relationship with him. This is common in some cases of divorce. Some people who go though an already emotional divorce with conflict in an adversary system make decisions they might not otherwise make.

These are often also decisions that are not in the best interest of "the children" even if courts typically go first with the preferences of the primary caregiver, who is usually the mother, because custody is still awarded along gender lines. In spite of this, Canadian governments have not taken it upon themselves to create accessible, affordable or timely ways of protecting against access denial and/or divorce poison. Why? The lobbies and the spin. So what is the deterrent apart from this?

The facts are that children will not remain neutral in cases of high conflict divorce. If the residential parent is overly critical of the non-residential parent or not overtly supportive of the children having a relationship with the other parent, children will typically remain loyal only to the parent they perceive to be more powerful. Children will typically be loyal to the parent to whom they have most access.

In Ontario, where courts favour mothers, loyalty choices are made by children in favour of their mothers and at the expense of their fathers - even if they suffer emotionally as adults. For all intents and purposes, the courts will do nothing.

As such, citizens like Tie who were formerly respected and admired while a part of a nuclear family can become second class citizens if their marriages fall apart. With 75% of divorce applications in Canada being filed by women, is anyone really safe from such a tragic downfall? Could anyone lose their kids if the circumstances went sour?

Therefore, for parents like Leanne Domi who are so obviously angry at her ex because of the breakdown of the marriage, some children become loyalty pawns and may turn against the other parent. The clinical term for this condition is "parental alienation syndrome" where children demonstrate uncharacteristic "hatred" and "anger" against the estranged parent. "Malicious mother's syndrome" is another clinical condition which could be so in the case of Leanne Domi. Yet, courts at first will always turn a "blind eye".

From what I have read, Leanne seems so angry with Tie (because relationship breakdowns and alleged infidelity can cause people to make irrational decisions) if she were judging her own case she would take Tie for everything he is worth and she would also deny him access to his children. Do courts have a responsibility to catch such unjust behaviour? Or, is there also an obligation for governments to create, promote and enforce consequences for those who might go too far.

After all, it is without a doubt in the best interests of children to have meaningful relationships with both parents. Is this in the children's best interest? Is it because of her anger?Is it about getting even or more money? What is it?

As a gesture to try to recognise the needs of Tie's children in all of this, I republish again Sinestra's now famous policy resolution unanimously passed by the Quebec Women’s Commission in 2005. It became Liberal policy at the Quebec General Council in November of 2005 but it fell off the radar because LPCQ felt the need to replace it with new resolutions, including the Nation resolution, which were made in an ivory tower with the purpose of crowning one leadership candidate in particular.

Resolution on the Right of the Child to Have Meaningful Access to Both Parents

Whereas the United Nations Convention on the Rights of the Child stipulates that children should have access to family members;

Whereas it is in the best interest of the child to have access to and strong relationships with both parents;

Whereas the federal government has not implemented policy that is in the best interest of the child or the blended family, despite reports in 1998 and 2002;

Whereas non-residential parents can be unilaterally and with no involvement of a higher authority denied access to their children without adequate, timely or accessible remedies.

Whereas the federal government had prioritized child support and remains inactive on child access;

Whereas children and their non-residential families stagnate under lopsided policy priorities;

Whereas the provinces administer and interpret the federal Divorce Act, with long delays and inadequate remedies to child access issues that hurt child-parent relationships;

Therefore be it resolved that the Liberal Party of Canada urge the Government of Canada to implement policy prioritizing access and protecting the rights of children to have access to both parents.

be it further resolved that the Liberal Party of Canada urge the Government of Canada to implement policy giving equal weight to relationship support between parents and children as to financial support.

be it further resolved that the Liberal Party of Canada urge the Government of Canada to create standards and legislation to support provincial and territorial governments in the enforcement of child access similar to those set up previously to support the enforcement of child support.

The bottom line is that in a progressive society with a Charter of Rights and Freedoms, Tie should not be found guilty before being proven innocent of not being a good parent, like could happen here. Furthermore, his children have a right to have meaningful access to both parents even though it appears that Leanne cannot control her anger still. Where are the real problems?

Some people may stand up and say this is wrong. Some "healthy sceptics" may wait until they experience such injustices themselves before making a stand. Meanwhile fathers, women, children and second families continue to suffer while special interests (including the legal industry) continue to benefit. Go figure!

Child / Parent Access Interference: New York Court removes custody from mother.

I have written multiple posts about a lack of federal policy in Canada on child-parent access issues. There are still no accessible, affordable and timely remedies to incidents of access interference in cases of divorce with children. In Canada, these situations invariably require the involvement of the court initiated by the 'victim' who is required to do a "private prosecution" to find accountability (with their own after-tax funds). If not, child-parent relationships suffer.

Nevertheless, when one can help to finance judicial accountability mechanisms to the finish line, there can be justice. Late last week in New York State, a mother lost custody of her child for not having allowed that child to have meaningful access with the child's father.

Although this type of accountability should be as common as is "access interference" itself, the Supreme Court of New York reversed custody and awarded it to the father. New York attorney Daniel Clement writes: "While the Court's decision does not detail exactly what the mother did, the decision evidences that there is a growing judicial intolerance of one parent interfering with the other parent's visitation rights." The decision is published here.

There are precedents in Canada. In January 2005 a similarly striking adjudicated response happened in an Ontario Court. Justice Lorna Snowie fined a mother $10,000 and another $15,000 sentenced her to 30 days in jail and reversed custody for not encouraging her 16-year-old daughter to participate in family counselling aimed at helping her reconnect with her father after many years of access denial.

From a policy perspective, what needs to happen is this: institutions need to also be created to enforce meaningful access between children and both of their parents similar to those already set up to enforce the payment of child support.

Part 3: Judicial Review: Is there a relationship between bias and Supreme Court appointments?

In my post on New Year’s Day I chose to share with the Liblogs and Progressive Blogger communities confidential data just released that in essence shows a judicial bias at the Ontario Court of Appeal. The post generated allot of hits, some exceptional enthusiasm, some comments, some skepticism, and some indifference.

I especially appreciated those wanting to know more details, such as Canadian Tar Heel, Anonymous Gayle and Devin. Gayle and Devin concluded with the information I had provided that the study was “flawed”. We had it out a little bit in the comments section of the post. In the end I disagree with what I consider to have been pre-mature conclusions. Nevertheless, we can agree to disagree, which is perfectly fair. Healthy skepticism keeps the world moving. It would be good to know if after this post we still disagree.

As for the very skeptical and borderline belligerent, “decoin”, there is a case at the Court of Appeal today that is using this report as evidence.

I may have been short-sighted in identifying as an example only Supreme Court Justice Rosalie Abella’s discrimination rating. Another former Ontario Court of Appeal Justice with almost as bad a discrimination rating was appointed by then Justice Minister, Irwin Cottler, to the Supreme Court of Canada on the same day in 2004 as Justice Abella.

If you refer back to the results that I posted on January 1, Justice Charron was not far behind Justice Abella on the gender report's discrimination rating. Justice Charron favoured women over men 62.6% of the time, which is considered “heavy discrimination also. Her results in brief are as follows:

For Charron JA D = 70.0 - 7.4 = 62.6 % (heavy)

Wikipedia has this to say about Justice Charron:

Charron (born March 2, 1951 in Sturgeon Falls, Ontario) is a Canadian jurist. She as appointed to the Supreme Court of Canada in October, 2004, and is the first native-born Franco-Ontarian Supreme Court judge. (This distinction has sometimes been ttributed to Louise Arbour, but Arbour was born and raised Québécoise.)

Charron received a Bachelor of Arts degree from Carleton University in 1972, her Bachelor of Law degree from the University of Ottawa in 1975, and was called to the Bar of Ontario in 1977. She practiced civil litigation, and then joined the Crown Attorney's office in 1980, and then became a law professor at the University of Ottawa. She was appointed to the district Court of Ontario in 1988, and to the Ontario Court of Appeal in 1995. She is eligible to sit on the bench until 2026 when she reaches age 75.

I am sensitive that interested bloggers may like more information on how to define a win, the difference between pure wins and partial wins, and the number of men versus women who made these appeals. The following is an extraction from another report called “Judicial Bias at the Court of Appeal I”, which used “quick law” to consider the cases that were before Justice Abella and Justice Charron over time.

"For Justice Abella the total cases can be summarized as follows:

Appellant, Number, Win All, Lose All, Win/Lose Some
Male, 28, 2, 23, 3
Female,13, 10, 2, 1

It can be concluded a man had a 82.1 % chance of losing on all issues, but a woman had a 84.6 % chance of winning on at least some issues when appearing before a panel with Justice Abella on it

For Justice Charron the total cases can be summarized as follows:

Appellant, Number, Win All, Lose All, Win/Lose Some
Male, 27, 3, 22, 2
Female, 10, 7, 2, 1

It can be concluded a man had a 81.5 % chance of losing on all issues, but a woman had a 80.0 % chance of winning on at least some issues when appearing before a panel with Justice Charron on it"

Please let me know if more information is required to show the legitimacy of this research at this time. Otherwise, I would like to know whether there is an interest, or just apathy in looking further as to whether our judiciary is upholding its Charter obligations with respect to gender neutrality or not.

Part 2: Judicial Review - Data from 10 year study proves a judicial bias

I have written some posts in the past relating to current events that arguably demonstrate a gender bias in Canada’s Superior Courts. If there were any doubt still, last week I got the hard evidence.

I received these data from a reliable source who shall remain anonymous for now. These data represent a brand new ten year study called “Judicial Bias at the Court of Appeal III”. The study is being presented via a motion this week at the Court of Appeal. The motion requests that the court declare itself a “non-independent and impartial body“.

Do I have an obligation to share this evidence even if names of certain esteemed jurists are mentioned? Some say “yes“, while others warn about this exercise being too specific. I conclude that since all information is in the public domain, there is nothing wrong with presenting it to the public a more organised version of this same information. Plus, let's start off the year and the 60th post at Views from the Water's Edge with the universal themes of "fairness" and "accountability". For those behind creating the methodology, preparing the data and organising this research, thank you for your efforts.

The methodology seems logical and the results are no less than SHOCKING. These data show some level of discrimination on the part of ALL TWENTY TWO judges tracked between 1996 and 2006. Perhaps more shocking is that there is “heavy/high” discrimination by more than 75% of these judges. Not one judge favoured men over women over time, the closest being Justice Laskin who ruled in favour of women 8.6% more often than for men.

Now, before I say anything more, I would like to remind all readers of the pertinent sections of our dearest Charter of Rights and Freedoms:

Equality Rights Equality before and under law and equal protection and benefit of law 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

The methodology of the study is described below:

This study analyzes the decisions of 22 judges at the Ontario Court of Appeal. It is an extension of the 2 previous studies, Judicial Bias at the Court of Appeal I and II. This study traces differences in decisions based on the sex of the appellant, as can be determined by judge, issue, and year. Over 800 decisions on the public records of judges of the court are included. All the available family law entries from the Canlii database for Ontario Court of Appeal were used. Specific cases are listed by judge in Appendix A, and by year in Appendix B, from 1996 to 2006.

Part one of the study is called “Discrimination by Judge”.

“Discrimination indexes are used to compare the differences between judges. Discrimination indexes are defined as ; D = % female wins - % male wins. A negative value would indicate discrimination against females, and a positive value, discrimination against males. Specific values for 17 of the justices were computed in the earlier studies Judicial Bias at the Court of Appeal I and II and the data is included in Appendixes 1 to 17. The values for the remaining 5 judges were derived from Appendixes 18 to 22 using the same techniques. Procedural issues, penalties, equalization, costs, and issues generally designated as other are not included in this analysis. Discrimination categories have been assigned as : 0 to 15 % is slightly discriminatory, 15 to 30 % is moderately discriminatory, 30 to 60 % is highly discriminatory, 60 to 85 % is heavily discriminatory, and 85 to 100 % is fully discriminatory.”

The key results are as follows:

D = % Female Wins - % Male Wins, Discrimination count, Category

For Abella JA D = 76.5 - 6.4 = 70.1 % (heavy)
For Feldman JA D = 72.7 - 13.3 = 59.4 % (heavy/high)
For Charron JA D = 70.0 - 7.4 = 62.6 % (heavy)
For Simmons JA D = 80.0 - 23.8 = 56.2 % (high)
For Lang JA D = 50.0 - 0 = 50.0 % (high)
For Wheiler JA D = 77.8 - 26.1 = 51.7 % (high)
For McMurtry CJO D = 69.9 - 40.0 = 29.1 % (moderate/high)
For O’Connor DCJO D= 80.0 - 30.0 = 50.0 % (high)
For Goudge JA D = 77.8 - 39.1 = 38.7% (high)
For Borins JA D = 70.0 - 27.3 = 42.7 % (high)
For Rosenburg JA D = 71.4 - 33.3 = 38.1 % (high)
For Armstrong JA D = 66.7 - 26.3 = 40.4 % (high)
For Moldaver JA D = 52.6 - 6.7 = 45.9 % (high)
For Macpherson JA D = 62.5 - 14.3 = 48.2 % (high)
For Gillese JA D = 85.7 - 50.0 = 35.7 % (high)
For Juriasz JA D = 60.0 - 0.0 = 60.0 % (high/heavy)
For Blair JA D = 50.0 - 9.1 = 41.9 % (high)
For Cronk JA D = 66.7 - 42.1 = 24.6 % (moderate)
For Sharpe JA D = 33.3 - 11.7 = 21.3 % (moderate)
For Catzman JA D = 63.6 - 43.7 = 19.9 % (moderate)
For Labrosse JA D = 61.5 - 45.0 = 16.5 % (moderate)
For Laskin JA D = 55.5 - 47.0 = 8.5 % (slight)

There you have it. And, these data were made available to you first. Oh yeah, did anyone else notice that one of the worst offenders of gender discrimination in this study is Rosalie Abella at 70.1%? Justice Abella is no longer a judge at the Ontario Court of Appeal because former Prime Minister Paul Martin appointed her to the Supreme Court of Canada in 2004.

For those who don’t know, Wikepedia explains the following about Justice Abella: “Abella was born in a displaced persons camp in Germany, and moved to Canada with her family in 1950. She graduated from the University of Toronto Law School in 1970, and practised civil and family law litigation until 1976, when she was appointed to the Ontario Family Court, becoming the youngest and first pregnant judge in Canadian history. She was then appointed to the Ontario Court of Appeal in 1992.”

What are my personal recollections of Justice Rosalie Abella’s contributions as a jurist?… I recall her having turned family law "upside down" by recognising the need to have “independent legal advice” for a separation agreement to be binding. Arguably, this was the catalyst for a huge “make work project” for the legal industry in family law. More recently, her fingerprints were all over a couple troublesome 2006 Supreme Court decisions, one of which was retroactive child support.

There is much that can be written about Justice Abella, which will have to wait until another time. However, in the meantime I can’t help but wonder whether persons will need to account for failing grades when it comes to gender bias in our judiciary?

Gender Discrimination in Ontario Family Courts: #1 public policy failure in Canada today

It is really too bad that in a progressive society with a Charter of Rights and Freedoms - the envy of the world - that grave injustices frequently occur to parents and children.

Believe it or not, gender discrimination currently exists in Canada's family courts. Many people laugh it off rather than deal with the hypocrisy. Others are simply not surprised.

Ontario is particularly bad. The rules that govern the judges and the institutions that get funding at the expense of forgotten priorities make it so that parents are treated differently because of their gender, and children suffer.

A few weeks ago I wrote how this bias in Ontario could affect Tie Domi and his children in a very negative way. Today, I am saddened by the Toronto Star's article Wednesday suggesting that two children would still be alive if it weren't for such a recklessly patriarchal system.

Canada's family policy and laws have failed and are brutally out of balance. Family policy is Canada's BIGGEST international embarrassment undermining the sheer credibility of our dearest Charter.

Perhaps Dalton could do his part to help reform the laws that negatively affect more than 50% of Ontario's population even though powerful lobbies still demand the status quo.

Family law is a joint jurisdiction: justice is administered by the provinces. At a later date I will focus on the federal responsibilities. For now, this blog is long enough because this article that reports this tragedy is all important and why those who long for a just society must speak up.