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Ruling may open divorce settlements

The Toronto Star
April 8th, 2000

By James Daw

A wealthy stockbroker has been ordered to support his ex-wife again, nearly 10 years after his final negotiated support payment.

The order is only temporary. But lawyers' say the implications for other divorced couples could be major. Thousands of support agreements could be scrapped and replaced if a ruling by a respected Ontario judge sets the future pattern.

Madam Justice Frances Kiteley, of Ontario's, Superior Court Of Justice ruled, a 1987 agreement did not meet the needs of former homemaker Beverly Bailey.

So, until a trial judge rules on disputed matters, Kiteley has ordered millionaire stockbroker Alan Paxton to pay his ex-wife $5,000 a month.

He and Bailey separated in 1985 after 20 years of marriage. In 1987, at age 44 she agreed to a settlement of $630,000, plus $2,000 a month for three years.

Plaxton also paid child support for the minority of time their three teenagers were with their mother.

Bailey had no success launching a career in photography or later in real estate sales. She went into debt and was in danger of losing her home.

Plaxton accuses her of mismanaging money.

Lawyer Linda Silver Dranoff said Kiteley's support award "certainly is a very significant case" - probably the first time support has been reinstated after a termination date.

If her reasoning is adopted widely, "it will mean, in my view, that parties cannot have confidence in drafting contracts, which is the way 99.9 per cent of domestic conflicts are resolved," said Plaxton's lawyer, Stephen Grant.

Other judges considering changes to support agreements have relied upon a test set out by the Supreme Court of Canada in three 1987 decisions, known as, the trilogy.

They have refused to alter separation agreements unless an ex-spouse could show he or she had a radical change of circumstances after the divorce for reasonsn that flowed from pattern of dependency during marriage.

It was the "radical change" test that Grant said Bailey had to meet. Bailey's lawyer, said she didn't have to meet that test but she could.

Kiteley, in written reasons issued March 30, took a different tack. She said she had no reason to consider trilogy rulings and "every reason to depart from the trilogy."

"I find that I do have jurisdiction to make an interim order for spousal support in the face of a contract which contains time-limited support and a release of future supportobligations."

Kiteley relies on 1985 revisions to the Divorce Act that require a court to look at the "conditions, means, needs and other circumstances of the spouses."

She argues against "a regime that subordinates the new principles of need and compensation to the old ideas of self-sufficiency, the 'clean break' and pure freedom of contact."

Kiteley looked at Plaxton's ability pay and his improved status in life. He has $5 mffiion in assets and made $400,000 last year.

The judge also looked at Bailey's role inn their lengthy marriage, her indirect help in advancing Plaxton's career, and her current economic hardship. "The court is required to relieve that hardship," she wrote.

Kiteley decided, for the purposes of the interim motion, it was unreasonable to expect that three years of support would promote, Bailey's's self-sufficiency.

Using this new test, Kiteley has "broadened the scope of judicial review so widely that it will catch a lot more spousal support agreements," said Niman.

"It will make a lot of husbands nervous about what they have signed."

Lawyer Martin Teplitsky said it's newsworthy that any interim support would be ordered before the wife had satisfied the court her old deal ought to be reopened.

"However, in this case, the wife's circumstances seemed to be dire," he said. "She was in danger of losing her house. So the judge intervened and made an order.

Kiteley's ruling may or may not influence the trial judge, who must rule on any long term support.

"I know from talking to other lawyers there is some surprise at this," said Teplitsky. "After all, it's nine years after the fact. It raises the spectre: Does it never end?"

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Monday 23 November 1998

Public backs fathers' rights

'Astonishing' majority wants change to laws on access to children, Compas poll shows

An overwhelming majority of Canadians believes the rights and needs of children and fathers are being ignored by divorce courts, a new poll indicates.

The Citizen-Compas poll suggests a remarkable level of agreement among Canadian men and women on the treatment of different family members during divorce proceedings. It also indicates most want government to get tough with parents who block a child's rightful access to their other parent.

The poll, conducted in conjunction with the Toronto-based National Foundation for Family Research and Education, posed a wide-ranging battery of questions about family life in Canada. The results suggest Canadians care passionately about the children of divorced parents.

Pollster Conrad Winn said he was astonished by the results.

"I can't find an adjective to describe the intensity of public dismay over family issues and the unfulfilled rights of fathers and children," said Mr. Winn.

"I'm surprised because these issues haven't been on the agenda of Canadian politics for a very long time. The most astonishing thing is the absolute consensus among men and women about how the rights and obligations of fathers and children are being ignored."

Fully 80 per cent of those surveyed thought it was "very important" for children from divorced parents to maintain an ongoing relationship with the non-custodial parent; and 17 per cent said that consideration was "somewhat important."

Feeling is most intense on this issue among Canadians under 30 years old: Eighty-six per cent of young adults said it is "very important" for children to maintain a relationship with the non-custodial parent.

Mr. Winn said this is particularly significant because a vast number of Canadians under 30 are children of broken marriages.

Two-thirds of respondents said government should make it a priority to encourage and facilitate relationships between children and non-custodial parents through family law.

Government should get tougher with parents who deliberately block their ex-spouses' access to their children, they said. Feeling on this issue was particularly high in Quebec.

Most of the survey's respondents said the needs of mothers are generally being met during divorce proceedings, but a vast majority said the needs of children and their fathers are not being met.

Compas asked this question: "When married couples with children seek a divorce in divorce courts, do you think the needs of mothers receive too much, too little or about the right amount of attention?"

The same question was asked about children and fathers.

Twenty-nine 29 per cent of respondents said mothers receive too much attention; 42 per cent said they receive the right amount and 30 per cent said they receive too little.

Five per cent of respondents said children receive too much attention; 25 per cent said they receive the right amount; and 70 per cent said they receive too little.

"Men and women are in complete agreement with respect to children," Compas noted.

Nine per cent said fathers receive too much attention; 29 per cent said they get the right amount; and 62 per cent said they got too little.

The poll results are especially significant because they suggest public opinion is in tune with many of the recommendations expected to be included in the final report of the joint Senate-Commons committee on custody and access.

The committee is likely to recommend significant changes to Canada's Divorce Act.

The committee, scheduled to meet today to put the final touches on its report, will probably recommend the concept of shared parenting replace the existing arrangements.

Under the recommendations, shared parenting would not always be a 50-50 arrangement, but would recognize the legal right of children to develop nurturing relationships with both parents.

The Compas poll, conducted late last month, surveyed 500 Canadians -- a sample size considered accurate to within 4.5 percentage points 19 times out of 20.

Mark Genuis, executive director of the National Foundation for Family Research and Educationa, agreed the poll results are surprising.

"If children are our greatest resource," he said, "we have to do more than just say it. We need to do something about it.

"Canadians seem to be saying that fathers and children are not getting their due when families break down. The strongest reason for even caring about fathers in these situations is that they can serve a positive role in the life of a child."

"The strength of people's feelings surprises me," he added.

"But it's a pleasant surprise."

This is the first of a three-part series. Tomorrow: How family life is affecting the emotional health of Canadians.

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Saturday 21 November 1998

Divorced fathers ensured access to children

Child's right to relationship with both parents to be cornerstone of new Divorce Act

Shared parenting would be the legal cornerstone of the Divorce Act under sweeping changes to be proposed by a parliamentary committee, the Citizen has learned.

In a final report expected to be completed early next week, the joint Senate-Commons Committee on Child Custody and Access will recommend that the federal law be amended to recognize the principle that both parents are equal with respect to children after separation and divorce.

Shared parenting would eliminate the existing "primary-care principle," under which one parent can be awarded sole custody of a child. In all but extraordinary cases, it would mean that both parents have the legal right to access. It would not, however, automatically mean a 50-50 arrangement.

The all-party committee is expected to recommend that judges who rule in separation and divorce cases do so from the principle that it is a child's right to develop a nurturing relationship with both parents -- and the right of both parents to have regular and predictable access to their children.

If the recommendations are adopted by the federal cabinet and parliament, the concept of sole custody would cease to exist in most cases.

Under the recommended amendments to the 30-year-old Divorce Act, one parent would not be able to block another parent from getting information about a son or daughter's schooling or medical treatments -- or from getting information about a child's progress in hockey, baseball or other recreational activity.

Couples will be strongly encouraged to take mediation in which a counsellor will discuss the effects of separation and divorce on the children.

Although shared parenting will be the most important recommendation made by the committee, it is also said to be refining a recommendation aimed at eliminating, or reducing, false accusations of abuse that are often the prelude to acrimonious divorces.

The committee will likely recommend that false accusations of abuse should become punishable under the Criminal Code -- and that courts should not be able to rule in a custody proceeding on the basis of accusations alone, which they now do.

The committee is also expected to recommend:

- punishment for ignoring court-ordered child-sharing arrangements;

- that any parent wishing to move a distance that would affect a shared parenting arrangement must give 90 days' notice to the other parent;

- that grandparents and other extended family members be allowed access to children under the concept "best interests of the child," which committee members say will be the theme running through their report.

The committee was due to present its report to Parliament, and Justice Minister Anne McLellan, at the end of this month, but have been granted a delay of about two weeks.

The all-party joint committee, co-chaired by Liberal MP Roger Gallaway and Liberal Senator Landon Pearson, has been dubbed the "Politically Incorrect Committee" because of the number of pro-father submissions it has heard. Feminist groups have accused the committee of being biased in favour of men and of giving men preferential treatment during hearings.

In fact, Mr. Gallaway told a news conference yesterday, the committee heard from 69 women's groups and 58 fathers' groups. "The committee worked long hours," he told the news conference, "and went out of its way to accept groups at the last minute. The committee heard virtually every group or person who wanted to be heard."

Mr. Gallaway and fellow committee member Senator Anne Cools called the news conference to criticize Secretary of State for Status of Women Hedy Fry for allowing her department's Web site to carry links to feminist groups attempting to discredit the committee. One Web site, they said, is encouraging people to say they were at committee hearings when they weren't.

Committee members heard three months of emotional, often controversial, hearings across the country. After the hearings, Mr. Gallaway said the Divorce Act desperately needs amending because it systematically treats non-custodial parents -- mostly fathers -- unfairly and puts the wants of separated and divorcing parents above the needs of their children.

Feminist groups are lobbying fiercely to derail the committee's recommendations, which they expect will result in changes to the status quo.

Mr. Gallaway, Ms. Pearson and Ms. Cools all refused to discuss details of the committee's final report.

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Position part of election package, McGuinty says

The Ontario Liberals are going to try it again.

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Parliamentary committee aims to make breakups easier on children

OTTAWA - Changes to the Divorce Act now being drafted by a parliamentary committee would make marriage breakups easier on children and possibly tougher on warring parents.

The major thrust of many of the changes, said several committee members, is to ensure both parents are involved in the lives of the children.

``What we recognized in committee is that, today in the courtroom and with the current Divorce Act, it is a more adversarial and a winner-loser approach and the child is an afterthought,'' said Reform MP Eric Lowther (Calgary Centre.)

According to interviews with committee members, here are some of the recommendations under consideration:

This could be modelled on an Alberta program that requires attendance at information sessions with a lawyer, social worker and psychologist who brief the separating spouses on the effects of their decision on their children, said Liberal Senator Landon Pearson.

Liberal co-chair Roger Gallaway (Sarnia-Lampton) said the intent is not to ensure 50-50 custody in all cases. In fact, he said, the committee recognized that parents spend different amounts of time with children before divorce. ``Why should that suddenly become a bone of contention after a divorce, or radically change?'' Gallaway asked.

``Both parents must share in the responsibility of rearing the child and have access to the child and have a relationship with the child,'' said Lowther, Reform's child and family policy critic. It shouldn't have anything to do with support payments, he said.

``I think the degree to which we found the real pain that so many people brought forward - the fathers and the grandparents and all - that showed that whatever arrangements we have at the moment are not adequate,'' said Pearson, the Senate co-chair on the committee.

``The thinking was, if it was a Criminal Code offence, people will be less likely to make an accusation that was false,'' Lowther said. ``Only legitimate accusations would be brought forward.''

Gallaway acknowledged perjury charges are already an option in such cases, but said it's one rarely used. He said the committee heard of only two cases in 30 years of Divorce Act proceedings where false abuse accusations led to perjury charges.

The National Action Committee on the Status of Women reacted angrily to a newspaper report on the recommendations, especially the notion that criminal charges would apply in cases of false accusations of abuse.

Amy Go, chair of NAC's justice committee, said the justice system already does not believe women, and ``inherently discriminates'' against them. Under this recommendation, she said, ``many women would be charged, and wrongfully from my perspective.''

Liberal Senator Anne Cools said the report is still a work-in-progress. Committee members will meet Wednesday to discuss recommendations before tabling it in Parliament.

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B.C. expands same-sex rights

All couples in public sector can get pension benefits

VANCOUVER -- British Columbia has become the first province in Canada to explicitly spell out in law that same-sex couples in the public sector have the same right to pension benefits as heterosexual couples.

Pushing the trend currently rolling across the country to a new level, B.C. Attorney-General Ujjal Dosanjh unveiled legislation yesterday which would give pension benefits to couples in relationships, regardless of their sexual orientation.

"There will be no doubt about this in B.C.," he said in an interview from Victoria. Equality will be explicitly protected by legislation, and British Columbians will not have to look to the courts or human-rights commissions to ensure their rights.

He added: "We did not wait for the courts to force us to catch up with changing social values. We are amending our legislation because it is the right thing to do."

Although Mr. Dosanjh is not expected to find much opposition to the proposed changes in the B.C. Legislature, the new law could provide a populist platform for the re-entry of former premier William Vander Zalm to provincial politics.

"I don't think it's a good idea," Mr. Vander Zalm, who was recently chosen as president of the B.C. Reform Party, said yesterday in an interview. The Reform Party does not hold any seats in the legislature.

"I believe in the traditional family, as does the Reform Party," he said.

"I think if [the government] feels strongly about it, then let's take it to the people and find out what the people have to say."

Mr. Vander Zalm added that he did not expect the NDP would go to referendum over the issue. "We do not get to comment. We only get the bills and to pick up the pieces later," he said.

The move in B.C. follows a decision by the Nova Scotia government last month to extend pension benefits to survivors in same-sex relationships as a matter of routine administration, without changing any provincial laws.
The announcement was made as the government faced the possibility of a lengthy, and potentially embarrassing, hearing before the Nova Scotia Human Rights Commission.

Meanwhile in Ottawa, Finance Minister Paul Martin confirmed yesterday that the federal government does not intend to appeal a recent Ontario court ruling that struck down a portion of the federal Income Tax Act restricting pension benefits to opposite-sex couples. The court decided that the act's definition of spouse, in the case of pensions, was unconstitutional because it discriminated on the basis of sexual orientation and violated the Charter of Rights and Freedoms.

The federal cabinet might consider the implications for the tax law today, a federal financial official said in an interview from Ottawa. With the Ontario ruling unchallenged, the federal act will require changes.

The B.C. legislation will expand the definition of spouse to include same-sex partners for public sector teachers, public service workers, college instructors and municipal workers. The changes, which are not expected to affect public sector pension contributions, are to become law by the fall.

Extension of spousal benefits to same-sex couples will not apply to the private sector. Mr. Dosanjh said the provincial government intends to review provisions governing spousal benefits in the private sector and possibly consider legislation.

The proposed changes were criticized yesterday by Michael Marwick of the Catholic Civil Rights League, who urged the B.C. government to scrap the bill and allow government employees to designate anyone they choose as a beneficiary. Society reflects an increasing complexity in the way people take care of each other, he said.

"If two spinster sisters are taking care of each other, why should they not have the same benefits," he said, adding the government does not need to define who is a spouse. "It's immaterial if there's a sexual relationship."

However, the B.C. Government and Service Employees' Union welcomes the extension of pension benefits to same-sex couples, said union president John Shields in an interview from Victoria. "We strongly advocated this and support it."

Lawrence Aronovitch, vice-president of the national lobbying organization Equality for Gays and Lesbians Everywhere, also endorsed the changes, saying that B.C. has "taken the lead again in building a society based on the equality of all citizens, regardless of sexual orientation."

Earlier this year, B.C. became the first jurisdiction in North America to give gay and lesbian couples the same privileges as heterosexuals for child support, custody and access.

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Government muddled over approach to gay rights

JENNIFER DITCHBURN

This week the government announced it would not appeal an Ontario court ruling that opened the door for same sex couples to gain access to survivor pension benefits, tacitly agreeing that its definition of spouse in the Income Tax Act was discriminatory.

But Justice Minister Anne McLellan was quick to add that only one section of the act would be affected - the 70 or so other places that definition of spouse is mentioned in federal law would be dealt with in the courts on a case by case basis.

"I’m told that at this time there is no need to move quickly. We’ll see," Prime Minister Jean Chretien said Tuesday outside a cabinet meeting.

That sort of confusion over Ottawa’s policy on same-sex couples has prompted federal parties on opposite sides of the issue to call for a clear debate in the House of Commons rather than continue to leave the problem to the sluggish court system.

"There has to be a debate in Parliament and we have to recognize same-sex couples in the body of federal laws," said Real Menard, an openly gay Bloc MP who’s introduced a private member’s bill to amend several pieces of legislation.

"It’s much easier for the government to say it’s not going to appeal and that it must respect the independence of the courts. That helps them avoid a real debate."

The last few years have seen an impressive list of victories for gay and lesbian Canadians. Gays and lesbians were included in the Canadian Human Rights Act in 1996, they have recently been given pension benefits by a handful of provinces and all protect against discrimination.

The Supreme Court ruled as early as 1995 that the opposite sex definition of spouse in the Old Age Security Act was discriminatory and Prime Minister Jean Chretien himself has acknowledged that laws will inevitably change to reflect society’s changing views of the family.

Still, there has been no move to harmonize federal laws or formulate a clear stance. As recently as two weeks ago, the Liberals were unwilling to amend new legislation to reflect a more encompassing definition of spouse.

"To us it’s clear that the government has set its foot on the road to equality and it’s a road from which there is no turning back. You can’t change the Income Tax Act and then treat other federal laws inconsistently," said John Fisher, executive director of the gay rights group EGALE.

"If the government takes that approach we can expect to end up with a mish-mash of federal and provincial laws with all sorts of inconsistencies and inequalities that benefit no one."

Some of the federal government’s reluctance to act assertively on the issue stems from a small but vocal group of mostly Ontario caucus members that are against extending any more rights to gays and lesbians, observers say.

"It’s clear that within the Liberal Party caucus there’s a wing that’s very Flintstone, very conservative," said Menard.

Added Kyle Rae, a Toronto city councillor and gay activist: "I think they’re conflicted. . . They have a rural rump and they have industrialized Ontario and Quebec and they have to balance in terms of their caucus."

Pensioner Bob Duncombe, a former Industry Department employee, says it’s unjust to continue to make gay Canadians struggle through the courts for access to the same rights heterosexuals have.

"That’s not special rights, that’s equal rights," said Duncombe. "I’ve paid into a pension plan for 30 years - I think I should be able to have that pension plan, and treat my partner equally with the (heterosexual) partner of my brother."

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Feds drop fight against same sex benefits

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B.C. grants same-sex pension benefits

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New York Times
Op-Ed Column

21 June 1998

The Divorced Dad's Burden

By Gail Sheehy

The cliche is the Deadbeat Dad. The newer reality is the Deadbolted Dad - locked out of his children's hearts after divorce.

It isn't a happy Father's Day when dad has to return his progeny by 6 P.M. on Sunday, like rented videos, knowing that his next chance for "take-out fathering" won't be for two weeks. Most of us still assume that divorced dads come in only one variety -- those who walk out, ignore their children and balk at paying child support orders -- and more than a million women can attest to this painful reality. But for many men, the situation is just the opposite.

Close to four million divorced fathers in the United States do pay child support. In many cases, these are men who have fought for joint or full custody, and lost. Even when they demand more time with their children, they find that little attention is paid to enforcing or honoring their visitation rights.

On a recent cross-country book tour I was struck by the numerous stories I heard from such men -- post-patriarchal New Men who are deeply attached to their children -- about the biases they face in the courts, day care centers and their children's schools, not to mention from punitive former wives. A Southern talk show host said he has nightmares that his former wife is "padlocking" his children's hearts and that when he tries to "come home again," he will find the locks changed.

That nightmare came true for Mike, a 36-year-old financial planner from Virginia. He found a surprise message from his wife on his office phone: "I've taken our son and gone back to my parents' place."

Mike made the 800-mile round trip to see his wife and infant son every few weeks and was led to believe they would reconcile. Six months to the day after she left, his wife sued for divorce. Because she had established residency for their child in another state, she now had a more sympathetic environment in which to demand full custody.

"My life has been a nightmare ever since," Mike told me. This Deadbolted Dad has traveled 15,000 miles in the last year to see his baby son, compelled by court order to limit his "contact" to 29 hours a month. It's not anger one hears in Mike's voice; it's agony.

His child did not choose to have only one parent. Growing up with a "hotel father" is bad enough, but his son has also lost half of his extended family. "There are 30 other people -- grandmother, grandfather, aunts, uncles, cousins -- who could have a positive impact on my son's life," Mike said. "I'm not a Deadbeat Dad, but I am getting close to being a Beat-Dead Dad. It's heartbreaking."

The political posse that began chasing Deadbeat Dads in the 1980's did achieve major social reform. According to the most current Census Bureau data, 76 percent of the nearly five million women due child support receive at least a portion of what they are owed, a total of nearly $12 billion a year, according to the most recent figure.

The greater role fathers are taking in raising children is one of the strongest shifts in the manly ideal. "There has been a fairly consistent increase in the proportion of fathers acting as primary child care providers during the last decade, among both married and divorced parents," said Martin O'Connell, chief of fertility and family statistics at the Census Bureau.

More and more men whose wives work and who have preschoolers are now acting as the primary caregiver -- 22 percent in 1994, up from 17 percent in 1988, Mr. O'Connell said. Think about it: a quarter of the men in this category -- 1.4 million fathers -- are taking up much of the responsibility for dressing, feeding and diapering their babies. And many more men who don't label themselves as Mr. Mom still shoulder a significant share of the responsibility.

It sounds like the sort of sensible role fluidity that progressives have long advocated, right?

But what happens when the traditional dialogue between the stay-at-home mom and fast-track father is reversed -- when it is the working wife who says, "I've grown and you haven't -- sorry, but I want out"?

These Mr. Moms may be stunned when they face courts still operating under old stereotypes about the inviolate mother-child bond. Their claims to custody are seldom recognized -- even joint custody is not easily won. To shut men out of their children's lives as a consequence of divorce not only robs the child and parents, but it also fails our society.

Larry Pollack, a New York matrimonial lawyer for a quarter of a century, described a typical case in which his client is the husband. When the wife received a hot-shot job offer in New York, the couple moved up from the South, where the husband had made his living buying and selling real estate and fixing up houses. She became the breadwinner, while he took on the role of soccer dad.

When the wife asked for a divorce, Mr. Pollack said, the husband believed the courts would recognize his wish to continue being the hands-on, day-to-day parent. Mr. Pollack is trying to persuade the father not to fight, because he won't win. Even though the mother intends to continue her demanding professional life by hiring nannies, she will almost certainly win custody, Mr. Pollack said, because it is seen as a social disgrace for a mother to lose custody of a child.

Some courts do recognize fathers' rights when both parents are reasonable.

The phrases "shared parenting" and "time sharing" are gradually entering the legal lexicon, promoted by groups like the American Coalition for Fathers and Children. But the key to making such arrangements work is not the courts; it is parents who are grown up enough to sacrifice their revenge fantasies for the greater good of the child they created together. Some, at least, can manage to clear this difficult emotional hurdle.

A Massachusetts research scientist named Roger, divorced at 50, was furious at having to give up his rights as a full-time father. In spite, he planned to move to California, get a condo, dye his hair and start dating. The children could visit when it was convenient.

"But I forced myself to think long term," he told me, and that meant sticking around the same neighborhood and convincing his former wife that allowing him to continue fulfilling the father's role was essential. He sees his children several times a week, not in a hotel or at McDonald's, but driving them to the dentist or doing homework together.

"It grounded me," Roger said of the approach. Otherwise, he said, he might have done a lot of silly or self-destructive things to make up for the emotional hollowness.

So much of the concern previously shown by courts in deciding the lives of divorced parents and their children has focused on monetary connections.

That neglects the long-term issue of maintaining the continuity of a child's relationship with both parents.

Roger's solution, while a compromise, suggests a new model -- and a reward that is priceless. After seven years of involving himself in the daily details of his children's lives, this unbolted dad says proudly, "They really like to see me -- and now I'll never lose them."

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Gail Sheehy is the author of "Understanding Men's Passages."

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Bringing up baby may prolong male lives: study

WASHINGTON (AP) -- Change those dirty diapers, men -- it may add years to your life. In a study of monkeys, apes and humans, researchers found taking care of the kids may help prolong the lives of primate fathers. In species in which mating partners share parental duties equally, males and females seem to live about the same length of time, said John Allman of the California Institute of Technology, co-author of a study appearing today in Proceedings of the National Academy of Sciences.

Allman and his colleagues examined how adult males and females share parental chores in humans and in nine species of other primates. They then compared the male-female longevity patterns in the species. For humans, they used Swedish census data going back to 1780. For the animals, they examined the life history of up to 1,500 animals in each species.

The pattern that emerged, said Allman, is that among primates that closely shared the care of offspring, the male-female lifespans also were nearly the same. But in species in which males took almost no part in child-rearing, the females outlives the males by a wide margin.

For instance, in chimpanzees, where the male has almost no role in raising the young, there are about three times more females than males in the adult population.

Among mountain gorillas, where fathers will protect and play with their young, females have only a slight survival advantage. Allman said that among humans, based on the 200 years of Swedish data, the women tend to live five per cent to eight per cent longer than the men.

Among two primates, the owl monkey and titi monkey, fathers carry their young from shortly after birth, except for brief periods of nursing. Allman said that titi monkey males actually tended to outlive the females and lifespan was about the same among the genders of the owl monkeys.

Allman said that among some new world monkeys, such as the marmoset, males appear to highly prize the young and up to four males may share parenting duties.

"There have been reports that some fathers will actually steal the children of others," said Allman.

These findings don't mean, however, that a father can extend his life with a sudden burst of child care, said the researcher.

"These are patterns that evolved over a long period of time," said

Allman. "They are a part of the different social structures in these

primate groups."

Copyright ® 1998, Canoe Limited Partnership.

All rights reserved.

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Same-sex pension settlement hailed as landmark for province

HALIFAX (CP) - Two gay men whose government-employed partners died have been awarded survivor pension benefits in what officials are calling landmark settlements in Nova Scotia.

``Today we're the most progressive province in Canada,'' complainant Wilson Hodder declared after what he described as an emotionally devastating three-year fight for benefits.

``We cannot deny Nova Scotia that.''

The agreements to begin paying benefits to same-sex survivors on July 1 follow an Ontario court ruling declaring part of the Income Tax Act unconstitutional.

Last month's decision in Toronto struck down a section of the act that restricted survivor benefits from registered pension plans to spouses of the opposite sex.

Ontario, some other provinces and many private firms that pay same-sex survivor benefits do so out of separate, unregistered funds known as offside plans.

``This is an historic day for Nova Scotia and an important step forward . . . for all Nova Scotians,'' said Wayne MacKay, executive director of the province's human rights commission, which brokered the settlements.

``The groups today will be the first of many to be covered in this way.''

Finance department official Bruce Cameron said the process of including the whole public service is just a matter of crossing t's and dotting i's. It will cost relatively little, he said.

All expect the settlements to influence the private sector.

The cases involved Hodder and Paul Boulais, two gay men denied benefits after their partners died of AIDS. Both cases were launched in 1995 and involved the finance department.

Hodder argued the civil service pension plan should provide him with the same pension benefits a heterosexual widow or widower would receive. He was paid $30,540 in retroactive benefits plus future benefits.

The second complaint also involved the Nova Scotia Teachers Union.

Grant MacNeil, a resource teacher who has since died, argued Boulais should be considered his spouse under the teachers' pension plan and the union's medical plan. Boulais was awarded $35,670 in retroactive payments, plus $1,680 in medical reimbursements.

The past and future payments will be made by the province if the federal government appeals the Ontario ruling. It must appeal by late June.

Some provinces, such as New Brunswick, are waiting for the 60-day appeals period to end before they begin instituting changes in their plans.

New Brunswick does not now pay pensions to same-sex survivors, but rather pays vested contributions to them in lump sums.

Both Nova Scotia complainants expressed satisfaction with the outcome, but said the process was difficult.

``When you're in hearings and you hear arguments why discrimination should be continued, or arguments to justify discrimination, that's embarrassing - to the people of Nova Scotia and certainly to me,'' Hodder said.

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Halifax and Toronto -- BY KEVIN COX,Halifax
MURRAY CAMPBELL,Toronto
A dramatic move by the Nova Scotia government to award pension benefits to survivors in same-sex relationships is being hailed as a ground-breaking decision that will force other governments to follow suit.

Faced with the possibility of a lengthy and potentially embarrassing hearing before the Nova Scotia Human Rights Commission, the province yesterday awarded pension benefits to Wilson Hodder and Paul Boulais, both surviving partners of same-sex relationships with public employees.

The province is the first to rule on the issue since an Ontario Court of Appeal decision a month ago that struck down a section of the federal Income Tax Act that restricted paying survivor benefits from registered pension plans to spouses of the opposite sex.

The court said the act's definition of spouse was unconstitutional and held that same-sex relationships had to be recognized.

Nova Scotia's decision was praised by human-rights officials and spokespeople for gay and lesbian groups. They said it would put pressure on Ottawa, other provinces and the private sector.

"I don't think another government in the country has taken that step, and I credit Nova Scotia for doing so," said Lynn Reierson, a lawyer for the Nova Scotia Human Rights Commission. "They should be an example for other governments."

Private pension plans will also be expected to offer the benefits to surviving spouses, regardless of sexual orientation, said Wayne MacKay, the commission's executive director.

"I would hope the private sector would see the writing on the wall and do the right thing," he said.

John Fisher of the lobby group Equality for Gays and Lesbians Everywhere said pressure will intensify on other governments.
Mr. Fisher said the immediate question is whether the federal government will accept the Ontario appeal court's judgment, or seek leave to appeal it to the Supreme Court of Canada.

A spokesman for the federal Justice Department said no decision has been made on whether to pursue an appeal. The government has until June 22 to decide.

Mr. Fisher said Ottawa should abandon its discriminatory definition of spouse. "The writing is on the wall and there is a sufficient trend in court decisions," he said, adding that the federal government has no excuse for "pouring taxpayers' money down the drain to fight a losing battle to maintain discrimination."

The pension plans at issue in Nova Scotia were originally set up so that the surviving spouse of a government worker -- traditionally a woman -- would receive pension benefits. In recent years, gay and lesbian groups have lobbied aggressively, taking their case to human-rights tribunals to demand recognition of same-sex spouses.

The Ontario government and some private-sector companies offer same-sex couples benefits under what are called "offside" plans. These plans are not registered under the Income Tax Act, and are separate from those offered to opposite-sex couples.

Bruce Cameron, a spokesman for the Nova Scotia Department of Finance, said the Ontario court decision -- which involved two employees of the Canadian Union of Public Employees, Nancy Rosenberg and Margaret Evans -- allows Nova Scotia to offer pension benefits to people in same-sex relationships.

Prior to the ruling, any pension plan that did not use the Income Tax Act's definition of spouse would risk losing the treasured tax exemption on contributions.

Ottawa agreed during the appeal-court hearing that its two-sex definition of spouse discriminated on the basis of sexual orientation, but argued it could be justified under a loophole in the Charter of Rights and Freedoms that placed "reasonable limits" on law.

For Mr. Hodder and Mr. Boulais, Nova Scotia's decision to settle the case was a victory after more than two years of legal wrangling.

"This was not just a victory for gays and lesbians in Nova Scotia in respect to benefit issues, but also for human rights in the province," Mr. Hodder said.

According to the settlement, survivors' pension benefits will be paid under the pension plans for government employees and for teachers. If the Ontario case is appealed, the province will continue to pay the benefits, but the money will come from the government coffers.

Mr. Boulais and Mr. Hodder said they wished the Nova Scotia government had moved on the issue before each of the men had to endure questioning from government lawyers about details of their relationships.

Mr. Boulais said he was upset that in preparing for the hearing he had to justify his relationship with Grant MacNeil, who launched the case before he died about a year ago. "Not being considered his spouse was upsetting," Mr. Boulais told reporters.

The province will pay Mr. Boulais $35,670 in past survivors' benefits and $1,680 as reimbursement for health-care premiums and medical expenses.

Mr. Hodder will receive $30,540 in survivors' benefits.

Officials with the human-rights commission and the provincial Department of Finance said the financial impact of the decision on pension plans in the province and across the country is expected to be minimal. They could not estimate the number of individuals who are in same-sex relationships.

Mr. Hodder said the money involved in the case is not significant.

"The big picture here is . . not just the access to pension benefits, because over all they are rather small, but to change the law with respect to human rights, and to ensure that gays and lesbians are treated equally with respect to pension laws. That's the most important consideration."

Same-sex pension settlement hailed as landmark for province

HALIFAX (CP) - Two gay men whose government-employed partners died have been awarded survivor pension benefits in what officials are calling landmark settlements in Nova Scotia.

``Today we're the most progressive province in Canada,'' complainant Wilson Hodder declared after what he described as an emotionally devastating three-year fight for benefits.

``We cannot deny Nova Scotia that.''

The agreements to begin paying benefits to same-sex survivors on July 1 follow an Ontario court ruling declaring part of the Income Tax Act unconstitutional.

Last month's decision in Toronto struck down a section of the act that restricted survivor benefits from registered pension plans to spouses of the opposite sex.

Ontario, some other provinces and many private firms that pay same-sex survivor benefits do so out of separate, unregistered funds known as offside plans.

``This is an historic day for Nova Scotia and an important step forward . . . for all Nova Scotians,'' said Wayne MacKay, executive director of the province's human rights commission, which brokered the settlements.

``The groups today will be the first of many to be covered in this way.''

Finance department official Bruce Cameron said the process of including the whole public service is just a matter of crossing t's and dotting i's. It will cost relatively little, he said.

All expect the settlements to influence the private sector.

The cases involved Hodder and Paul Boulais, two gay men denied benefits after their partners died of AIDS. Both cases were launched in 1995 and involved the finance department.

Hodder argued the civil service pension plan should provide him with the same pension benefits a heterosexual widow or widower would receive. He was paid $30,540 in retroactive benefits plus future benefits.

The second complaint also involved the Nova Scotia Teachers Union.

Grant MacNeil, a resource teacher who has since died, argued Boulais should be considered his spouse under the teachers' pension plan and the union's medical plan. Boulais was awarded $35,670 in retroactive payments, plus $1,680 in medical reimbursements.

The past and future payments will be made by the province if the federal government appeals the Ontario ruling. It must appeal by late June.

Some provinces, such as New Brunswick, are waiting for the 60-day appeals period to end before they begin instituting changes in their plans.

New Brunswick does not now pay pensions to same-sex survivors, but rather pays vested contributions to them in lump sums.

Both Nova Scotia complainants expressed satisfaction with the outcome, but said the process was difficult.

``When you're in hearings and you hear arguments why discrimination should be continued, or arguments to justify discrimination, that's embarrassing - to the people of Nova Scotia and certainly to me,'' Hodder said.

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- SEVEN IN TEN ONTARIANS BELIEVE WOMEN'S CHILD SUPPORT SHOULD BE WITHHELD IF ACCESS TO CHILDREN IS DENIED - - Ontarians split on whether jail term is an acceptable punishment for denying access - © Angus Reid Group, Inc. Public Release Date: May 25, 1998

Download Complete Press Release and Poll from the Angus Reid Group's website at: http://www.angusreid.com/pressrel/pr250598.html This Angus Reid Group/Globe and Mail poll was conducted by telephone between April 22 and May 3rd, 1998 among a representative cross-section of 1,000 Ontarian adults. These data were statistically weighted to ensure the sample's regional and age/sex composition reflects that of the actual Ontario population according to the 1996 Census data. With a national sample of 1,000, one can say with 95 percent certainty that the results are within +3.2 percentage points of what they would have been had the entire adult Ontario population been polled. The margin of error will be larger within regions and for other sub-groupings of the survey population. A recent court case in Ontario which saw a woman sent to jail for denying her ex-husband access to their children, coupled with Senate hearings on access and child support payments has prompted this Angus Reid Group/Globe and Mail poll. Support and Access Seven in ten (71%) Ontarians believe that women who deny their ex-husbands who pay child support, access to their children, even when the access has been ordered by a judge, should have their support payments denied until access is reinstated. The plurality feels quite strongly about this as 47 percent strongly agree with the statement. (Table 1) While a majority of both men and women share this perspective, it is more prevalent among men. Specifically, one-quarter (75%) of men and two-thirds (67%) of women feel that payments should be withheld until access is reinstated. In addition, this perspective is more prevalent among those with household incomes over $60,000 (77%) than among those with household incomes below $30,000 (68%). Ontarians split on whether jailing a woman who repeatedly denies access is acceptable Respondents were asked to consider a recent case in Ontario where a woman was sent to jail by a judge because she repeatedly denied her ex-husband access to his child under a court order. They were asked to indicate whether they believe that this form of punishment is acceptable or unacceptable. Ontarians are split in their appraisal of this case. In particular, 46 percent find it acceptable, while 48 percent find it unacceptable. (Table 2) There is an interesting gender split on these issues whereby a majority of men (57%) find the punishment acceptable while a majority of women (58%) find it unacceptable Back to Contents From THE GLOBE AND MAIL (March 17th, 1998) The Statscan study, based on interviews with 11,000 Canadians in 1995, found that some marital behaviors are completely unacceptable to any generation. These include abuse, infidelity and a loveless marriage -- in which case a commanding majority of Canadians of all ages (from 88 per cent to 95 per cent) thought divorce was in order. The Statscan study, by Judith Frederick and Jason Hamel, was published yesterday in the quarterly magazine Canadian Social Trends. As for traditional trouble spots, such as money, sex, alcohol, housework and children, members of Generation X were much more likely than older Canadians to advocate toughing it out. For example, nearly half of Canadians 50 and older felt that financial disagreement was a legitimate reason to break up a marriage, as did 40 per cent of baby boomers (aged 30 to 49). Only 28 per cent of those in the 15-to-29 age group thought it was a sufficient reason to end a marriage. Even bad sex was not thought to be a death knell for marriage in the eyes of younger Canadians. Just 21 per cent thought it was a good reason to divorce, compared with 45 per cent of the 50-plus group and 37 per cent of boomers. As for excessive drinking, again younger Canadians were more tolerant than their elders. Sixty-eight per cent said it would be okay to divorce a partner who drank too much, while 80 per cent of the 50-plus group and 73 per cent of those 30-to-49 agreed. As for the sharing of household work, 12 per cent of Gen-Xers saw that as a reason to divorce, compared with 21 per cent of the oldest age group and 16 per cent of boomers. Younger Canadians are also more likely to want more children, a separate 1995 Statscan study found. For example, 78 per cent of women in their 20s said they intended to have two or three children, while 67 per cent of women in their 30s had the same plans. The response spread was similar for men. As well, fewer younger women than older women intended to remain childless. The second survey, also published yesterday in Canadian Social Trends, found that just 4 per cent of women in their 20s did not want children, compared to 8 per cent of women in their 30s. The survey also found that plans for children diverged sharply between highly educated men and women. Women, for whom having children has many physical and career implications, wanted fewer children the more educated they were. Men, on the other hand, wanted more children the more educated they were. "Having children has a much smaller impact on men's careers, which may explain why they want more children than women," says the Statscan article, written by Dave Dupuis. Alan Mirabelli of the Vanier Institute of the Family in Ottawa said the chasm between the attitudes of young and old Canadians can be read as a judgment. He noted that the Gen-Xers grew up during the past 30 years of liberalized divorce laws, and experienced the most severe effects from it of any generation in Canadian history. "It's probably the generation that has the most to say to us," he said. "That's why I'm beginning to think it's a conservatism based on their pain." He said it looks as if the younger generation may view marriage with much less romanticism -- and more tough-mindedness -- than do baby boomers. The latter group, he said, were more idealistic about what they wanted out of marriage. This young generation, though, is looking at marriage both as a union of the heart and the pocketbook and may well prove less self-indulgent, especially after having lived through the economic instability of the 1990s. "Suddenly, hanging onto a relationship is the one stable thing in life," Mr. Mirabelli said. Calgary's Ms. Jepson, who will be attending law school at the University of Victoria next fall, said she has the distinct sense that she is part of a generation of social change. Perhaps, she said, some members of her generation are not as prone to think only of themselves, but also to consider others. "I think people maybe have better intentions now than they did," she said, adding she does not think divorce would ever be an option for her. She hopes to marry and have children, as well as pursue a law career. For Aysan Sev'er, a sociologist at the University of Toronto who is an expert in divorce, intentions are a poor indicator for behaviour. "You have to keep in mind that there is a gap between what people say and what they actually do," she said. Attitudes about divorce Believe that divorce is justified under the following conditions: Gen-Xers Boomers Elders Total Abusive behaviour from the partner 95% 95% 94% 95% Unfaithful behaviour from the partner 89% 85% 89% 88% Lack of love and respect from the partner 86% 87% 87% 88% Partner drinks too much 68% 73% 80% 74% Constant disagreement about how the family finances should be handled 28% 40% 49% 40% Unsatisfactory sexual relationship with the partner 21% 37% 45% 35% Unsatisfactory division of household tasks with the partner 12% 16% 21% 17% Conflict about how the children are raised 14% 17% 21% 17% Inability to have children with the partner 8% 12% 17% 13% Disagreement about the number of children to have 3% 6% 11% 7% -* Overall response by Canadians, 15 and older Age ranges: Gen-Xers (15-29), Boomers (30-49), Elders (50 and over) Source: Statistics Canada, 1995 General Social Survey Back to Contents From THE TORONTO STAR (March 17th, 1998) Infidelity, abuse cited for divorces By Elaine Carey Toronto Star Demographics Reporter Hillary Clinton may stand by her straying man but Canadians won't tolerate their partners' philandering. Almost nine in 10 Canadians surveyed in three age groups believe an unfaithful spouse is reason enough to break up a marriage, Statistics Canada said yesterday. Infidelity ties with lack of love and respect as the second main justification - behind abusive behaviour - for divorce, according to a report in the quarterly journal, Canadian Social Trends. Parenthood appealing The data from a 1995 survey of 11,000 adults was the first time Canadians were asked why, in an age of growing divorce rates, some marriages succeed while others fail. It found that all three generations - dubbed Elders, born before 1946, Boomers, born between 1946 and 1965, and Gen-Xers, born after 1965 - have similar strong views on the top three marital no-nos. Three-quarters of them also believe that having a partner who drinks too much is sufficient grounds for divorce. But after that, Elders are much more willing to end a marriage over experience issues - battles over money, sex, housework and children - than the younger age groups. ``It appears that the more experience Canadians have dealing with these aspects of marital life, the less tolerant they become,'' the study says. Gen-Xers are also only half as likely as Elders to consider a bad sex life reason to split up which ``may reflect younger Canadians' relative lack of experience with the kind of problems that can develop in a sexual relationship over time.'' Elders are also almost twice as likely as Gen X-ers to say battles over housework justify divorce and men - who do far less of it - get more upset about it than women. In fact, there was a strong correlation between lack of sex and housework battles, the survey found. That supports the theory that unresolved conflict over household chores can lead to resentment. Back to Contents From THE TORONTO STAR (March 12th, 1998)

APPEAL REJECTED:

Canada's new child support guidelines can't be changed for rich parents, whose high incomes might force them to make unusually large payments, Ontario's top court has ruled.

The Ontario Court of Appeal's decision yesterday involved the case of Toronto lawyer Tom Baker, whose net worth of $78 million and annual income of $945,538 mean he must pay $10,034 monthly to his two children.

Baker had previously been paying $2,500 a month in child support, but a lower court increased the amount, following federal guidelines that took effect last May.

Baker appealed, arguing that while $10,034 a month was the amount required by the new law, it was inordinately high and well beyond the reasonable needs of his children, now 12 and 14.

He suggested it was spousal support masquerading as child support, resulting in a windfall for his former wife.

But in rejecting his appeal, Madam Justice Rosalie Abella, writing for a unanimous three-judge panel, said the guidelines mark a departure from a time when a child's financial needs were considered separate from a parent's.

``This is a significant and, in my view, long overdue reform,'' she said.

``When family members live together as part of a household, it is almost impossible to dissect which aspect of a particular expense is directly attributable to a particular individual's needs.''

The notion of what's ``reasonable '' for a child now means what a parent can afford to pay, Abella added, ``even if that means living better than their basic needs demand.''

The idea is to keep a child's living standard as close as possible to what it was before the parents separated, she said.

The case marks the first time the guidelines have been challenged at the appellate court level and Baker's appeal focused on a provision dealing with incomes over $150,000.

It requires parents to pay child support in the amount stipulated in a table unless considered inappropriate by a court.

But Abella held yesterday that the mandatory payment can be reduced only in cases where the child is 18 or over, the paying spouse is not the child's parent, custody is shared or there is undue financial hardship.

The court was told that when Baker's wife, Monica Francis, was in her eighth month of pregnancy with their second child, he told her he felt their marriage was in trouble.

Five days after the birth, he left her.

Two years later, in 1987, he became president and chief executive officer of Seven-Up Canada Inc. and began leading what Abella described as an ``exceptionally lavish '' lifestyle.

In December, 1996, Baker was charged in connection with an $18 million money laundering and tax evasion case arising out of his takeovers of Seven-Up and other companies and released on $750,000 bail.

As of last year, Francis was earning about $63,000 annually as a teacher.

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Advocates of fathers' rights cheer mother's
sentence for obstructing access order

Toronto -- HIGHLY emotional, unbending and painfully ignorant of the law, Lisa Barbosa was probably the last person who should have argued her own child-custody case before a judge.

On the fourth day of the tempestuous proceeding last week, Judge Patrick Dunn tossed Ms. Barbosa in jail for obstructing at least 40 times a court order granting her former partner access to their five-year-old daughter.

Because the 60-day jail sentence is a precedent, it has become a rallying point for both women's and fathers' rights groups. Ms. Barbosa's case, depending on whom you believe, is either a travesty of justice or an example of the system finally recognizing the important role of fathers.

"What happens here has serious ramifications," said Lauren Israel, a lawyer who has come to Ms. Barbosa's aid. "There is no doubt this will be a precedent-setting case whichever way it goes. Courts will have to deal with this more in future."

Members of fathers' rights groups are heartened by the sentence. "This could be the absolute pinnacle of the movement," said Nick Kovats, co-founder of Freedom For Kids. "If the media take this to a certain level, it could be a watershed."

Ms. Barbosa, a sometime model and stay-at-home mother, was granted bail earlier this week until her appeal is heard. She had been in jail eight days.

She and Richard Dadd, a Toronto store-owner, have been at odds since they broke up their 10-year common-law relationship shortly after the birth of Britney.

In a ruling released on Tuesday, Judge Dunn found Mr. Dadd to be calm and long-suffering, not given to exaggeration or vindictiveness. He was a loving and firmly committed inspiration to his daughter, the judge said, categorically rejecting accusations from Ms. Barbosa that her ex-partner was violent, unstable and had sexually abused Britney.

In contrast, Judge Dunn found Ms. Barbosa was volatile and appeared to be harming her child psychologically and emotionally. In mounting her case, the judge said, Ms. Barbosa falsified a written statement, cast blame wherever was convenient to her, and built "a wall of almost impenetrable confusion around issues."

In acting as a law unto herself, Judge Dunn said, Ms. Barbosa used every means at her disposal to thwart access to Britney.

"Ms. Barbosa obfuscated, she misconstrued evidence and even tried to mislead the police and the centre about access orders of this court.

"Her contempt for the court process and her neglect for the need of her child to see her father cries out for serious punishment," Judge Dunn said. He added that he hoped his decision to jail her would send a message to the public that access orders must be obeyed.

Besides expanding Mr. Dadd's access to include alternate weekends, school vacations and many special occasions, Judge Dunn also ordered the Peel Regional Police to assist Mr. Dadd to gain access to his daughter if necessary.

Judge Dunn even decreased Mr. Dadd's support payments to $156 a month from $250, and took the unusual step of awarding legal costs against Ms. Barbosa.

Barry Goldman, a Toronto lawyer who has taken on the task of trying to reverse Ms. Barbosa's 60-day jail sentence, said Ms. Barbosa "was clearly not capable of acting for herself. She just didn't know any better.

"Even though it wasn't asked for, in every legal sense of the word, [Mr. Dadd] was given joint custody," Mr. Goldman concluded. "When I first heard of the case, I was convinced she must have mooned the judge or flipped him the bird."

He said Judge Dunn ought to have made it clear to Ms. Barbosa early on that she desperately needed a lawyer.

Even Mr. Dadd is reportedly taken aback at Ms. Barbosa's jail sentence. Mr. Kovats said when he located the man several days ago, Mr. Dadd expressed regret about the sentence. Mr. Kovats said he also asked not to see his case exploited.

That seems most unlikely. It is simply too useful to the grassroots, fathers' rights groups scattered across the country. Mr. Kovats said the case beautifully illustrated what they been trying to say -- that it is an outdated and unfair notion to automatically assume mothers should get custody of children.

While the press outcry over the case has so far centered on Britney being separated from her mother, Roland Aube, a long-time family law practitioner, said yesterday this sympathy is misdirected.

"The kids are hurt, yes, but mommy broke the rules," he said in an interview. "What about the potential suffering to the child because he or she does not have access to her non-custodial parent? This is not about fathers and mothers. This is about the rights of children."

Mr. Aube said it is reasonable to limit or deny a father access if his behaviour could harm a child, but not simply because a mother doesn't like it. "But there are biological and emotional reasons for family structures," he said. "There will come a time when society appreciates this."

Mr. Aube said protracted litigation is not the norm. However, some estranged partners inevitably use access and support as weapons.

But the courts are getting wise to these tactics, Mr. Aube said. "Judges are starting to look a lot more at the way parties deal with one another when you are talking about access," he said.

The issue is heating up at a critical time. A joint parliamentary-Senate committee is gearing up for cross-country hearings into the issue that will be held this spring.

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She's out of detention after serving 8 days, pending appeal

A Mississauga mother jailed 60 days for failing to allow the father of her 5-year-old daughter access to the child has been released.

Lisa Barbosa, 31, walked out of the Metro West Detention Centre yesterday after serving eight days behind bars.

``I'm so thankful that God has answered my prayers,'' said an ecstatic Nancy Tempelmann upon hearing of her daughter's release.

Tempelmann and Barbosa had another reason to celebrate last night as well. Yesterday was the fifth birthday of Barbosa's daughter, Britney.

Last week, Judge Patrick Dunn of Ontario Court, provincial division (family) ordered that Barbosa be jailed. He also ordered that Britney's father, Richard Dadd, 34, of Brampton, have custody of the child while her mother served her sentence.

``We're so happy that we'll be able to be with her on her birthday,'' said Tempelmann, who celebrated the occasion along with her daughter and Barbosa's husband, Tony, and the couple's 18-month-old son, Joey, last night.

Barbosa may be free, but the shock waves from her sentence have yet to subside. Members of the national men's group, In Search of Justice, were to picket today at Brampton court in support of Dunn's initial decision.

``Thousands of dads across Canada encounter endless, persistent breaches of the law by mothers who feel they own the children and can break the law with impunity,'' said the group's president Ross Virgin.

``Our preference would have been that she serve her full sentence, but the point has been made loud and clear that you cannot commit access violations without the potential of a jail term,'' said Virgin.

However, another Toronto men's group, DADS Canada, has taken an opposing view.

``We couldn't be happier that she's out,'' said Stacy Robb, who added that his group plans to aid Barbosa in her court appeal.

``DADS Canada supports the children in these cases,'' said Robb. ``And to jail a mother really hurts the children emotionally.''

Robb's group is also advocating on behalf of Toronto father Steven Bresnark, 37, who is serving a 90-day sentence at the Toronto (Don) Jail for failing to pay more than $21,000 in child support arrears and court costs.

Barbosa had been ordered several years ago to allow Dadd regular visitation with Britney. Barbosa says she always complied with the order, except when the child - who is asthmatic - was sick. But Dadd took Barbosa to court last week arguing that he was denied access a number of times.

Judge Dunn ordered Barbosa jailed for contempt. He is currently preparing the reasons for his judgment, which will be available later this week.

Barbosa's two Toronto lawyers, Lauren Israel and Barry Goldman, who brought the motion before Judge Caswell, return to court March 17 to set a date for the appeal of Dunn's order.

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Gets 60 days for denying father access to their daughter

A Mississauga mother of two is serving a 60-day jail sentence for failing to allow the father of her 4-year-old daughter access to the child.

``I'm devastated . . . I don't understand how this could happen,'' Lisa Barbosa said during an emotional interview yesterday at the Metro West Detention Centre.

``I know people get sent to jail, but couldn't the judge have understood how horrible this is for my children?

``Their mommy is suddenly gone and she's in jail.''

Barbosa, 31, had been ordered several years ago to allow Richard Dadd, the father of 4-year-old Britney, regular visits with the child.

He took her to court, arguing that he was denied access a number of times.

She, however, maintained she always complied with the order, except when the child - who is asthmatic - was sick.

She was jailed Monday after a hearing in a Brampton court.

Dadd said he was not surprised by the judge's decision.

``I can't say I'm happy that the mother of my child is in jail,'' he said.

But ``this is really the other side of the coin,'' Dadd said.

``I've been prevented from seeing my daughter on all her other birthdays . . . Father's Day . . . a lot of times . . . so now things have turned around.''

Barbosa, who was allowed only a short telephone interview from behind a plexiglas wall in the visitor's room of the jail, said she fears that both her children will be emotionally scarred by her legal battle with the father and, now, by her jailing.

Tuesday is Britney's 5th birthday.

``What will she feel when I'm not there?'' asked Barbosa, who has always been a stay-at-home mother to Britney.

Barbosa and Britney's father were never married. She has another child, 18-month-old Joey, by her husband, Tony Barbosa.

Barbosa said her children have never been without her for any length of time.

Little Joey, she said, is so upset by his mother's absence that Tony has had to take time off from his job to take care of him.

``I'm afraid for my children and I'm afraid for myself,'' said Barbosa, who was sentenced for breaching a court order which allowed Dadd, 34, of Mississauga to visit the child.

In court, Barbosa denied breaching the order. Dadd, however, testified that he had been prevented from having his court-ordered access to Britney on numerous occasions.

Dadd and Barbosa began their relationship in 1983. Though they dated until 1993, when their daughter was born, they never lived together.

Barbosa said she has custody of her daughter; Dadd was granted access and ordered to pay $250 a month in child support.

PROTECTIVE CUSTODY

Dadd, who is now married to another woman, has temporary custody of Britney while Barbosa is serving her sentence.

Asked how the child was reacting to her mother's jailing, Dadd said he had not told the girl.

Barbosa was placed in protective custody last night after she reported to officials that other inmates had threatened to beat her.

She has requested a transfer to another facility.

Her mother, Nancy Tempelmann, has contacted Toronto family lawyer Lauren Israel.

She has also enlisted the support of the mothers' right group Mothers Against Fathers In Arrears.

Dadd says he has kept his child support payments up to date.

When told about the case, Israel said she had never heard of any woman receiving a 60-day sentence for such an offence.

``It's very unusual,'' she said.

Tempelmann, 51, who attended the court hearing with her daughter, plans to picket outside the jail.

``I told the judge they (Barbosa and Dadd) were both to blame for the situation . . . and I asked for his mercy,'' said Tempelmann, recalling her shock at seeing her daughter led away in handcuffs.

The most unfortunate aspect of the case is that ``two children are being punished by having their mother taken away,'' said Kaarina Pakka of MAFIA.

Her organization knows of only one other case of a mother being jailed under similar circumstances.

Last year, Deborah Grenier of Hamilton was jailed for six days after the father of her child won a contempt of court motion in family court.

In that case, the father argued that his former girlfriend and mother of their 2-year-old daughter had breached a court order by refusing to let him see their child.

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