Gender Bias in the Family Courts of Canada: Fact or Fantasy?


Let us start with a story - a true story as I understand it. A Polish immigrant with limited English language skills went to Fredericton's Family Court to get more contact with his five year old daughter. He had become unemployed. Mom applied to court for custody and dad sought to increase his two weekly afternoon visits. Mom wanted to limit dad's contact with the child. Being unemployed, dad had the time, so why not? Justice Myrna Athey was reported, in the local papers, to have made the following comment on the record:

"Many fathers don't even see their children on Wednesdays, so why should this five-year-old be spending Tuesdays and Thursdays every week with her father?"

Justice Athey reduced access to each Wednesday.

It does not end there! ... When the New Brunswick Shared Parenting Association lept to the poor man's defence and launched a complaint to the Canadian Judicial Council and publicly encouraged others who had witnessed such comments, nineteen local lawyers publicly lambasted the individuals who had spearheaded the drive. A letter from the lawyers to the local paper stated:

Ms. Jarratt's comments are troublesome for two reasons: (1) There is no factual basis offered for the grossly generalized statements made; (2) The tactic of using a complaint by another individual as an opportunity to publicly and personally malign a judge in the language used is distasteful, particularly when the judge cannot respond to such allegations.

Individuals have the benefit of a process which permits them to complain about the conduct of a member of the judiciary. Public awareness of such a process should be encouraged. Moreover, questioning the merits of legislation and lobbying government for change is an inherent right in our democratic society.

However, publicly encouraging a campaign of complaints against a judge through the media in terms used by Ms. Jarratt is, in our view, not only irresponsible, but unacceptable.

These lawyers, while they would perhaps begrudgingly concede the right of a citizen to complain to the Judicial Council, they do not accept that gender biased comments made by a judge in open and public court should invite an equally or even greater public response. Do not the public have a right to know what goes on in our courts? Do not members of the public have the right to respond publicly when a judge pontificates openly in a public court about men in general? In our democratic system, do not citizens have the right to publicly comment on public pronouncements made by non elected officials, by judges? Do only lawyers have the right to comment on judge's decisions but then only in academic law reviews? Should there not be a wider public debate about the key social issues that influence judicial decision making?

By the way, the complaint to the Judicial Council was predictably dismissed.