Vancouver lawyer Carey Linde stirs custody debate

Vancouver lawyer Carey Linde is one of the city's foremost crusaders for fathers' rights. So it shouldn't be a big surprise that he wants Attorney General Wally Oppal to amend the Family Relations Act to recognize that fathers have equal rights as parents in custody, access, and guardianship.

In an interview in his Howe Street office, Linde said this could be accomplished by introducing a new section in the law stating that there is a "rebuttable presumption of shared parenting". "If one parent says I want 50-50 access, it's going to have to be the other parent to prove it shouldn't be the case," Linde said. "Now it's the complete reverse."

The attorney general's ministry is reviewing the Family Relations Act. Linde noted that there is already a legal presumption that property acquired after marriage should be divided equally. But Linde suggested that the onus is still on men to prove why they should have an equal right to parenting. "Where the time and money and energy is being spent now is on children, because there is no presumption," Linde said.

He added that he doesn't think the courts should be allowed to rebut shared parenting if one parent makes allegations about the other's treatment of the children without corroborating evidence or without a report from a doctor or registered psychologist. Linde also said that the past and present conduct of the parents toward one another should also be irrelevant after they've separated.

Grace Choi, chair of the Vancouver family-law section of the B.C. branch of the Canadian Bar Association, told the Straight that she doesn't think the B.C. legislature will adopt Linde's recommendation. "Basically, what he is trying to do is limit the scope of the evidence that a court should hear when considering what to do with custody, access, guardianship–all those things–when the best interests of the child is paramount," Choi said.

UBC law professor Susan Boyd, who specializes in family law, told the Straight she doesn't think that a legal presumption of shared parenting is always appropriate, because not all biological fathers and biological mothers end up sharing a household or sharing parenting. She also wondered how it would apply with lesbian parents or in cases in which three or four people are involved in parenting a child.

"Do we want to have a rebuttable presumption of shared parenting or joint custody in all of those scenarios?" Boyd asked. She also said that spousal abuse "often accelerates when parents split up".

Linde said that 15 percent of his firm's clients are women who are dealing with a "control-freak ex-husband" or with a "legitimate abuser". However, he also said that there are lots of men who end up in trials against female spouses with borderline personality disorder, which causes havoc in the family and for the children.

"The judges are too quick to think if there is a problem, it must be caused equally by both of the parties," he said. "The judges are not strong enough to call a spade a spade. They'll do it more frequently if they think the man has done something wrong."

Linde claimed that if the Family Relations Act was amended to incorporate a "rebuttable presumption of shared parenting", many women in custody fights would stop playing "head games" with former spouses.

Alison Brewin, executive director of West Coast Women's Legal Education Action Fund, told the Straight that it's a "myth" that women act out their bitterness in the court system. She added that women often can't get their story across in court because it's too expensive. "The court still has not grasped the impact of violence against women and what that means for the children," Brewin said.

Linde said that he used to be a commercial and corporate litigator but took a two-year hiatus in the early 1990s. During this period, he learned more about the importance of fathers in the raising of children.

"One of the most interesting studies ever done was done in Sweden, with thousands of people," Linde said. "The results were the children who scored best across the board were those children raised by their fathers."

He said that the study found that intact families scored second-best, and children raised by single mothers ranked third in such areas as the lack of juvenile delinquency, staying out of prison, maintaining job skills, and empathy. He said it's an interesting statistic, but he also recognizes that the sample was probably skewed because it's the motivated fathers who are more likely to seek and gain custody of their children.

"The sample of fathers who have taken the trouble to fight the system–to become the custodial prime [parent]–are not your average parent or your average father," Linde said. "They're probably better off financially, intellectually, et cetera, and they've made the effort."

He claimed that the legal system has historic gender bias that deems mothers to be more compassionate and better at rearing children. But he said the idea of equal-time shared parenting is catching on among judges. The National Association of Women and the Law, on the other hand, has claimed that women's "systemic inequality in society is also reflected in family law contexts".

Vancouver family lawyer Georgialee Lang told the Straight that Linde's advocacy is a major reason why more fathers are receiving joint custody. However, Lang added that she doesn't expect the B.C. or federal governments to grant a legal presumption of shared parenting.

"I think there would be a lot of backlash from the Canadian Bar Association," Lang predicted. "I think there will be a huge backlash from judges across Canada."