Deadbeat Dads: Subjectivity and Social Construction 9781442673731

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'DEADBEAT DADS': SUBJECTIVITY AND SOCIAL CONSTRUCTION

The 'deadbeat dad' is a common topic in today's news media. As an experienced social worker, family therapist, and mediator, Deena Mandell is familiar not only with popular, legal, and institutional discourses on the subject, but also with the lived reality of those involved in support conflict. In 'Deadbeat Dads/ she addresses the reasons for the failure of child support enforcement. Non-payment of child support is often seen as an individual act of defiance or a moral failing, or it is interpreted only in terms of its economic ill effects. These perceptions can actually reinforce resistance and disengagement on the part of fathers, by causing them to see themselves as victims whose personal rights are under threat. And all too often, as this study shows, in the struggle between the state's protection of its financial interests and the fathers' focus on their personal rights, the needs of children disappear. Mandell constructs a sophisticated argument around findings from interviews with separated fathers, augmented with the perspectives of enforcement personnel such as judges, mediators, and lawyers, and with first-hand observation of courtroom discussions. This is a qualitative shady that lets informants speak for themselves but also subjects the resulting insights to critical analysis. DEENA MANDELL is a professor in the Faculty of Social Work at Wilfrid Laurier University.

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DEENA MANDELL

'Deadbeat Dads':

Subjectivity and Social Construction

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

www.utppublishing.com c University of Toronto Press Incorporated 2002

Toronto Buffalo London Printed in Canada ISBN 0-8020-4765-3 (cloth) ISBN 0-8020-8318-8 (paper)

Printed on acid-free paper

National Library of Canada Cataloguing in Publication Mandell, Deena, 1950Deadbeat dads : subjectivity and social construction / Deena Mandell. Includes bibliographical references and index. ISBN 0-8020-4765-3 (bound). ISBN 0-8020-8318-8 (pbk.) 1. Divorced fathers. 2. Desertion and non-support. support. 4. Men - Identity. I. Title. HQ756.M34 2002

306.89'0851

3. Child

C2002-901887-0

This book has been published with the help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. The University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

For my parents, Sonia and Jakob Mandell, and for my children, Alexander and Jonah Mandell Hundert.

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Contents

LIST OF FIGURES viii ACKNOWLEDGMENTS ix

Introduction 3 1 Fathers and Divorce: Personal and Institutional Processes 2 The Study 60 3 The Fathers' Perspective 83 4 Looking at Legal Texts 131 5 How the Institutional Informants See It 162 6 Putting It All Together 209 NOTES 245 REFERENCES INDEX

265

251

13

Figures

1.1 1.2 3.1 5.1

Elements of the separation/divorce system 51 Art's trajectory through the system 52 Fathers' group profile 84 Institutional informants 168

Acknowledgments

I have been blessed with the guidance, wisdom, and practical support of a number of individuals whose contribution to this project I would like to acknowledge. It took countless hours over a number of years to complete the research and ultimately produce a book. I could not have managed the expenditure of time and energy without the help of Mark, Alex, and Jonah Hundert. Their patience and encouragement - not to mention practical assistance - was invaluable and deeply appreciated. I also thank Adrienne Chambon, Ralph Garber, Sheila Neysmith, Jennifer Nedelsky and Amy Rossiter, whose collective scholarship has offered enduring inspiration. Dr Rossiter has done multiple duty as friend, colleague, unfailing mentor, and volunteer taskmaster in the transition from research study to book. I thank Dan Goldberg and Richard Gill for their gracious expert consultations at various stages of the project's development, Gary Cameron for his helpful pragmatic advice when I was in need of it, and Nancy Freymond for her research and editorial assistance as well as her calm encouragement. The anonymous readers who offered their thoughtful comments and astute suggestions are also deserving of thanks (although I didn't always feel this way). The research participants themselves - the fathers and the professionals in various divorce-related fields - were, of course, the mainstay of the study on which this work is based. I am grateful to every one of them for the thoughtfulness and candour they brought to the interviews. I would like to acknowledge the Faculty of Social Work and the Research Office of Wilfrid Laurier University for their support of editorial work done on the manuscript.

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'DEADBEAT DADS'

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Introduction

This book is about separated and divorced fathers' perceptions regarding payment of support for children with whom they no longer live. It is about their perceptions of themselves, too, as fathers, husbands, and citizens, and about the social context in which these perceptions of self, or identities, have taken shape. My interest in the issue of non-payment of child support arose out of my own clinical experience with families separated by divorce. Especially challenging for those of us who work with non-supporting fathers is the tendency of many to present themselves as hostile, self-interested, and provocative. Effective practice as a clinician or mediator was disabled for me - as it is for many practitioners - when I found myself unable to respond constructively to fathers who had disengaged themselves emotionally or financially (or both) from their children. Often they seemed incapable of considering realistically the emotional and material needs of their children; they focused instead on complaints that the money was being mismanaged or misspent. In this context I found it difficult to sustain an empathic, nonjudgmental approach. As a practitioner, I needed to understand better the subjective experience of non-supporting fathers so that I might be able to work with them more successfully. At the same time, when I witnessed or read about the anguish of some fathers whose children no longer live with them, I found it difficult to understand the problem of financial non-support by divorced fathers as a group. 'If their children are so important to them/ I asked myself, 'why aren't they good fathers?' I wanted to understand better the experiences of fathers in order to work with them for the sake of their families. In a shady of how fathers process the decision not to comply with child support obligations (Mandell, 1995), the fathers I interviewed expressed themes of

4 'Deadbeat Dads' identity transformation and a sense of disempowerment at the hands of their wives and the judicial system. The sense of victimization was so intense for these men that all of them had joined a Fathers' Rights group and identified with its message that fathers are structurally disadvantaged. I was struck by the irony of this position, given that the literature on divorce emphasizes the severe economic disadvantages of divorce for women and children. I was also struck by indications that the sense of social injury was both genuine and intense. I wanted to examine the social reality behind these perceptions and understand the context for such a position. The theme of disempowerment led me to explore the relationship between fathering and a man's identity. My conclusion was that there is a cultural context within which some fathers' perceptions of injustice and disempowerment become understandable. The identity issues, which they experience as problematic, can be understood as signs of social rather than individual pathology (Mandell, 1993). This analysis has relevance for direct practice with divorcing families, which at present is therapeutically oriented. On the other hand, social policy's increasing emphasis on enforcement of payment neglects individuals' emotional vulnerability to divorce. Sociological research of the 1970s and 1980s on non-payment of child support has been criticized for concentrating on economic matters outside the context of emotional issues (Arditti, 1991). Structural explanations (i.e., the 'macro' perspective) do not account for the fact that many fathers do pay, in spite of negative feelings, or for the fact that each father makes discretionary choices about allocation of his resources. These choices are not a 'given'; they have significance. Thus, at the level of individual practice (the 'micro' level), we remain without an understanding of the individual processes related to the nonpayment problem. In contrast, the general research on divorce has been criticized for focusing excessively on family dynamics and individual characteristics, while excluding the legal context (Girdner, 1985). Interpersonal explanations of paternal disengagement (i.e., of non-payment, and reduced contact or no contact) fail to account for how widespread the problem is. They do not help us understand how so many fathers can disengage themselves emotionally and financially at the expense of their children's welfare. It is difficult to account for such a large-scale phenomenon by relying on case-by-case analyses. Models that focus on pathology-based assessment and individualized treatment may not be

Introduction 5 the most suitable ones for working with divorced fathers. Referring specifically to non-payment, the 1976 report of the Law Reform Commission of Canada, Family Law: Enforcement of Maintenance Orders, asserted that 'it is incorrect to ascribe default on such a massive scale to some character defect that appears to be the rule rather than the exception among the male partners in broken families' (cited in Foote, 1986:14). There is a need to integrate the micro and macro research approaches in order to develop a comprehensive perspective about support non-compliance. If we focus on the structural aspects of nonpayment of child support, we may overlook the influence of individual psychology and especially the issue of personal accountability. If instead we emphasize the problem's individual dimensions, we are in danger of seeing it more as a mass mental health problem than as a problem with interlocking individual and structural dimensions. This dilemma poses a barrier to practitioners and policymakers alike. At the time of writing, the federal Department of Justice is conducting a national study of compliance patterns. The goal is to find ways to encourage compliance that will succeed better than the shaming and strict enforcement methods that have been relied on during the past two decades. Preliminary findings confirm that willingness to pay factors often contribute to the decision whether to pay child support, and that the post-separation relationship between the paying parent and the children seems to be a stronger determinant of compliance than the relationship between the parents themselves, or any preseparation relationships (Dept. of Justice, 2001). Much of this book is about fathers' experiences of separation and divorce and how their needs can be incorporated constructively into practice without compromising the needs of mothers and children. It is based on a research study I conducted (described in chapter 2) that examined the accounts of separated or divorced fathers who experienced difficulties with government agencies enforcing support payments. These accounts consider these men's experiences of the separation process, their support obligations, their encounters with the legal system, and their thoughts and feelings about their former partners and their children. Above all, these accounts offer the men's perspectives on themselves as husbands and fathers. At the same time, this book examines the institutional and legal documentary context of the divorce process - and of support obligations and enforcement in particular - and relates all of this to the fathers' stories.

6 'Deadbeat Dads' Feminist Debates and Dilemmas Although feminists rightly argue that male perspectives must cease to dominate public policy, ignoring fathers' perspectives on divorce policy may be unrealistic and counter-productive. An understanding of fathers' perspectives is essential to the development of policy that can transcend the present polarization of men's versus women's issues. Measures to improve the economic position of women and children are long overdue; however, the widespread resistance among fathers to child support obligations suggests that we have so far failed to address issues that are salient for fathers in a changing matrix of Western family and gender values. The more I have tried to understand fathers, the more uncomfortable I have felt about the apparent conflict with my own personal politics. How am I to reconcile my feminist commitment to the interests of women with the fact that my work requires me to develop an empathic understanding of the men I encounter - men who are widely characterized as 'deadbeats' and who often present themselves as hostile to women in general? It is clear from the responses my work sometimes evokes that the conflict I experience internally is not imagined. When I talk about how fathers' subjective experiences of divorce influence their behaviour, I am often misunderstood to be saying that fathers are an oppressed group whose behaviour must therefore be forgiven. When I talk about how the role of fathers is socially deconstructed and reconstructed by divorce, I am sometimes seen as blaming society and overlooking the role of personal choice. I identify myself as a feminist, yet other feminists are often angry about what I say; at the same time, antifeminists have perceived incorrectly that I am opposed to feminist interests. There seems to be an assumption by both sides that understanding fathers necessarily means rejecting notions of accountability; or conversely, that holding fathers accountable compromises a critical stance vis-a-vis structural issues. This struggle reflects a long-standing debate among feminist analysts of child and spousal support. In the following section I briefly introduce the main issues in that debate and explain why my research has persuaded me to abandon one side and take up the other. One view maintains that since so many fathers fail to comply with support obligations, it must be that separated fathers are, quite simply, irresponsible and negligent with regard to their children's well-being. Some see this as individual failures of responsibility and accountabil-

Introduction 7 ity; others understand it as a symptom of the privilege that fathers as a group enjoy in a patriarchal society. In either case, the state must take responsibility for enforcing fathers' compliance by whatever means necessary. The other position is the one that I have come to favour as a result of my shady of fathers within a broader context. This position holds that fathers do not resist making payments on the basis of individual failures of responsibility, but rather on the basis of identities that are socially produced through a number of legal, economic and popular discourses. In other words, fathers share personal responsibility with the social environment - an environment that shapes the identities that seem to characterize non-supporting fathers. This position has been criticized as unduly sympathetic to fathers and as lending credence to father's presentation of themselves as victims. It is also suggested that if one is sympathetic to the interests of fathers, one is necessarily unsympathetic or insensitive to the interests of mothers. It seems difficult to engage in discourse about non-supporting fathers without raising suggestions that we want to control or vilify them, or - conversely - to defend them. Understanding does not, however, mean agreeing or encouraging. The fear that to understand fathers is necessarily to threaten mothers fits into our tendency to polarize issues along gender lines until they are impossible to understand fully. Feminists and profeminists writing about fathers and men's rights movements point out that these movements are activating a masculinist ideology by invoking the discourse of 'victim' (Arendell, 1995; Bertoia and Drakich, 1995). Masculinist ideology refers to how the men's movement has taken up the discourse of equality and used it to reinforce its claims for privilege. This perspective is similar to the liberal profeminist view of masculinity, except that it defines the principal harm in the current gender arrangements as directed against men rather than women (Clatterbaugh, 1990). In other words, the demands articulated by feminists in the 1970s and early 1980s for more egalitarian relations have been appropriated by fathers' rights activists to support their own arguments in favour of joint custody and reduced support payments. The implication of this critique is that to take up claims by man to victim status is to support this maculinist ideology. On the contrary, in my work I have looked for how this ideology is supported by its presence in the legal discourses that frame marriage and separation in Canada. What I have found is that there is an ambivalence in the law and in judicial decisions which mirrors the ambivalence of the fathers themselves.

8 'Deadbeat Dads' Reforms in family law and policy have tried to recognize the economic disadvantage that women suffer in traditional marriages. At the same time there are clear references in the law to the new, 'modern' marriage in which a man and woman are in economic partnership rather than a dependency relationship. This has served to reduce the woman's claims on the man for support when the marriage ends. As a society, we seem to be confused about what we really want families to look like and what we really think of equality, and experience persuades me that Canada is not alone in this. Understanding this does not lead me to think that fathers are victims of society, but it does help me to understand how fathers can hold contradictory views about what it means to be a responsible father, and how they can construct responsibility one way and then behave differently - apparently without noticing the discrepancy. This understanding does not prevent me, either, from being sympathetic to the plight of women who are struggling against the contradictions of the men and the system; rather, it helps me understand more clearly the nature of the contradictions and how they operate to keep women caught between competing discourses. In talking about fathers' experiences, I have used their own categories of Victim' and 'disempowerment' and I have identified legal and social discourses that I believe contribute to this subjectivity. Interpreting the identity of Victim' as a socially produced one admittedly has the potential to arouse the objections of those who do not wish to see fathers' self-interested claims legitimized. Though it is true that understanding identities as socially constructed does raise difficult questions about individual responsibility and structural issues, these are precisely the questions I have been interested in raising. The purpose is not to let fathers off the hook, either individually or collectively; nor is it to see them as blameless victims of society; rather, it is to see what we can learn from their subjectivity as victims that will be helpful in addressing these social problems. It is important for us to learn how it is possible for privileged, dominant subjects to see themselves as victims in these circumstances. What are the available discourses that create a space for such a subjective position? Returning now to the position in favour of state enforcement of fathers' responsibility, I come to the argument which claims that financial support must be considered a debt like any other and enforced accordingly. The argument goes as follows: Fathers are being held accountable by the state for their obligation to ensure their children's well-being. Since fathers are generally accustomed to the role of debtor,

Introduction 9 this need not be especially demoralizing or stigmatizing. After all, fathers are used to paying taxes, owing money on their credit cards, paying mortgages and business debts, and so forth. However, as the discussion in chapter 6 will demonstrate, the treatment of the spousal relationship as a debtor-creditor relationship may in fact contribute to fathers' resistance to their role as supporters. The final argument for the enforcement position is that any and all measures required to ensure fathers' accountability are justifiable. Shaming and punishment are considered appropriate ways to guard against fathers escaping their accountability. Thus, any challenge to an aggressive approach to enforcement is seen as threatening the gains that women have made in family law in recent years. There is some important history behind this argument. In many Western countries, divorce laws and policies have been undergoing great transformations that are finally addressing some of the injustices that women have traditionally experienced in the process of marital separation. One of the most significant changes has been the shift toward state enforcement of child support payments. Although this has turned out to be less effective than anticipated, it is still hailed as an important breakthrough in women's equality and in the assault on child poverty. It is easy to understand why the call for state enforcement of support payments was welcomed by feminists, myself included. The 'deadbeat dad' has become a common social construct that appears in all the public media and is part of everyday parlance. Procedurally, because of how the enforcement system operates, every father has come to be treated as if he were a potential deadbeat dad. There is a powerful social force at work when such things happen. These are the forces I explore in this study. Along with other feminists, I find myself caught in a dilemma. If we accept the notion that fathers are individually responsible for the wellbeing of their families, we meet the requirement of holding men accountable and reminding them of their obligations. However, we cannot do this without upholding a patriarchal notion of the family as a private domain within which women and children must depend for their security on the economic advantages that accrue to men. The less generosity and good will these men demonstrate, the sharper our dilemma grows, until we must ask ourselves what the ultimate goal is. Is it to make the men pay, both literally and figuratively? Or is it to liberate the wives and children from their dependence and poverty? In this book I consider the issue of responsibility for children in general

10 'Deadbeat Dads' and how our conceptualization of that responsibility as a private family matter - embodied in the father's role as provider - continues to inform our approaches to having that responsibility met. The book is divided into six chapters. I begin by outlining the contextual foundations on which my study was based. Chapter 1 reviews the five fields of relevant knowledge: Research on separated and divorced fathers. Drawing on divorceoriented literature, I look at what has been written about how men including fathers - respond to divorce emotionally and behaviourally. Research on fatherhood and masculine identity. This is a review of the representations of fatherhood in the fields of sociology, psychodynamic theory, psychology, and biology. The emphasis here is on the relationship between fatherhood and masculine identity. A historical perspective on the social construction of fatherhood in Western society. This section provides an overview of how the rights and responsibilities associated with fatherhood have been shaped by social and economic developments. The legal and social construction of postseparation fathering. This serves as an introduction to the issues in family law and the institution of divorce that currently influence the role of the separated father. An overview of the divorce system. This section provides some context for the discussion by the participants in the research. In it I refer repeatedly to the micro and macro perspectives - that is, the psychological and the structural dimensions of the issues. This approach reflects how the literature on this subject tends to be organized. In chapter 2 I present the four elements that make up this study's conceptual framework and methodology. The perspective of critical social theory. This theory is important for analysing social processes and for uncovering how power operates in social relations. A historical view of the family as a social construction. This section discusses the role of the state and its institutions in the family. The social construction of 'social problems.' This section examines the construction of social problems, paying particular attention to the divorce and child support debates. The social construction of multiple identities through the social discourses that regulate social relations. This section illuminates how modern power is exercised, how identities are produced in the process, and how individuals take up those identities.

Introduction 11 In chapter 3 I present a collective description of the fathers as well as their individual profiles. The analysis focuses on their presentation of self according to four subjective positions. Self as father. This section explores perceptions of being good and bad fathers and discusses the marginalization of the fathering role. Self as husband/provider. The complexities of the issues and discourses relating to the identities of husband and provider are presented. Self as a person in society, a citizen. This section looks at fathers' perceptions of their standing in the community. Self as victim, as disempowered. This final subjective position examines how charges of injustice, bias, criminalization, and depersonalization by the system have led all the fathers to perceive themselves and/or their children as victims. In chapter 4 I examine the legal context in which the separation/ divorce process unfolds. The social identities made available to fathers through the constructions in these texts are explored. The legal construction by the state of divorced fathers. Custody determination, access arrangements, child support, and spousal support (where appropriate) - and the enforcement of all of these - contribute to the legal construction. The legal construction by the state of divorced husbands. This section looks at how the law reorders relations between spouses. The legal construction by the state of divorced men as citizens. This section explores the implications of the fathers' removal from the discourse of family and relationship. The state's role in divorce. This section looks at how the state's role contributes to the fragmentation of fathers' identities under the law in ways that reflect multiple - often contradictory - social constructions of what a father is and is not. In chapter 5 I present an analysis of the data from the perspective of the institutional informants whose role is to interpret law, policies, and procedures related to separation and divorce. The informants include the following. Representatives of the enforcement agency. This section reports on interviews with an administrator and two lawyers - one male and one female. Provincial Court judges. This section details the perspectives of two white male judges. Community lawyers. This section reports on interviews with two lawyers: one white male lawyer and one visible minority feminist lawyer.

12 'Deadbeat Dads' Mediators. Likewise, this section details the perspectives of two mediators: one white male and one visible minority female who works for the Provincial court. In chapter 6 I look at the interaction of subjectivity and institutional discourses against a wider ideological and socioeconomic background. The discussion is divided into three sections: Central discourses. This section summarizes the discourses relating to the family, parenting roles, and the relationship between family members and the state, and finds a significant degree of ambiguity and unpredictability inherent in the system. How fathers take up identity. This study shows that competing constructs are reflected in the multiple identities that emerge in the fathers' data. Fathers do not recognize themselves in the constructs of bad father, bad citizen, or criminal, but rather in the construct of disempowered male. Implications. In the book's concluding section, I present critical reflections for policy, research and practice.

1 Fathers and Divorce: Personal and Institutional Processes

The Problem and the Context The impact of non-support on women and children was identified during the 1980s as a major social problem in North America and in the West generally. In the overwhelming majority of cases where child support has been ordered by a Canadian court, the payor is the father. Where a court order existed following separation or divorce, close to 80 per cent of children under the age of twelve were placed in their mother's custody, 7 per cent were placed in their father's custody, and the remaining 13 per cent were in a shared custody arrangement (Marcil-Gratton and Le Bourdais, 1999). Family type is probably the most important factor in the risk of poverty, and the type of family with the highest poverty rate is singleparent mothers under sixty-five with children under eighteen. Approximately 15 per cent of Canadian children live in lone-parent families headed by women. Over 60 per cent of these families are poor. The number of non-custodial fathers in default of child support is alarmingly high in Canada, as it is in many other countries. Only 43 per cent of court-ordered child support is received regularly; 30 per cent of court-ordered payments have been in arrears for six months or more (Marcil-Gratton and Le Bourdais, 1999). Regarding payment of child support, there has long been an unexplained discrepancy between what fathers say, when asked, is the right thing to do, and what they actually do as a group. This discrepancy is the source of much emotional and material suffering for the children of separated and divorced families and for the mothers who are raising them. Growing concern about the economic consequences of non-payment

14 'Deadbeat Dads' has led to calls for solutions at the policy level. To this end, Canadian and American researchers have attempted to determine the causes of non-payment. This research has tried to facilitate solutions by analysing the problem on a social level. As an outgrowth of this work, stronger enforcement and aggressive social control have become common approaches throughout Canada and much of the United States (Dudley, 1991b). This change has been driven partly by the goal of easing the state's financial burden as supporter of mothers and children. In Ontario, for example, despite an enforcement program established in 1987, only 21 per cent were fully paid as of June 1991; an additional 18 per cent were partially paid. Far more aggressive and intrusive measures were initiated under the Family Support Plan Act of 1992, yet by the end of 1999 only 25 per cent of orders were fully paid (an increase of only 7 per cent), and the percentage of partially paid orders was still only 35 per cent. In spite of the measures instituted, roughly 40 per cent of payers in Ontario (97 per cent of whom are men) continued to be deemed in arrears as we entered the twenty-first century (Ministry of the Attorney General, November 1999). Although the amount of money transferred to families from paying parents had increased to $545 million in 2000, from $360 million in 1995, Ontario ombudsman Clare Lewis indicated that $1.2 billion in arrears were still owing ('Old government/ 2001). The failure of escalating enforcement to solve the problem is less puzzling when one considers the data on payment patterns. Available figures suggest that voluntary agreement between parents is much likelier than a court-ordered arrangement to result in compliance with child support obligations. For children whose parents were married and made a private agreement regarding child support, the data show a high proportion (72.9 per cent) of regular payers; in only 8.4 per cent of such situations are payments in arrears for six months or more. In the case of broken common-law unions, fathers are more likely to be six or more months in arrears, regardless of whether there was a private agreement between the spouses (24.3 per cent), or whether a court order was in place (44.8 per cent). The most significant point I am making here is that agreements parents described as private resulted in more regular payments than those arising from a court order (MarcilGratton and Le Bourdais, 1999). From these patterns, it seems that compliance may depend more on the father's will than on his being subject to authority.

Fathers and Divorce: Personal and Institutional Processes 15 The Response of Fathers to Separation and Divorce Paternal Disengagement

Research on divorce has tended to focus either on the social and economic impact of divorce or on its psychological effects. The literature on divorce is interdisciplinary and includes the fields of psychiatry, psychology, sociology, social work, law, history, economics, and social anthropology. The division in the literature between micro and macro tends to fall along disciplinary lines; however, some authors (e.g., Arendell, 1986, 1995; Barker, 1994; Kruk, 1993; Riessman, 1990) have tried to transcend the micro/macro split. A phenomenon that has been studied by both clinical and policy researchers is the disengagement of fathers from their children. This emotional and/or financial disengagement was widely documented in the 1970s and 1980s (Cassetty, 1983; Ministry of the Attorney General, 1993; Kruk, 1993; Pearson and Thoennes, 1988, 1990; Seltzer and Bianchi, 1988) as the effects of more freely attainable divorce came to light. Although findings about the impact of fathers' continuing relationships with children are inconsistent, there is clear evidence that fathers' financial support is important to children's material well-being and overall adjustment. In this book I will focus mainly on fathers' economic disengagement, but I will also explore emotional disengagement. These two have been treated as distinct by lawyers, academics, and other professionals, yet people in their daily lives tend to experience them together. The separation of the issues of support and access was at first seen as a step forward in the protection of children's welfare. The helpfulness of this approach has been constrained, however, by the framework that contains it - that is, children's welfare as the private concern of families. The Micro Approach

The clinical literature tends to depict violent or negligent acting out by fathers as a pathological response to a disruptive event. One explanation is that fathers who have a close relationship with their children are likely to become depressed and withdraw from the constrained relationship that follows most divorces (Kruk, 1993). Other fathers may submit to the loss of control and its sequelae (Furstenberg and Cherlin, 1991; Huntington, 1986; Weitzman, 1988).

16 'Deadbeat Dads' Other factors, including identity and role functioning, have been identified as affecting separated fathers' subsequent behaviour as parents. A review by Ahrons and Miller (1993) of the research on the relationship between support and other factors concluded that 'the relationship between former spouses is a significant predictor of compliance in economic support (Wright and Price, 1986) and that there is an association between the level of paternal contact and fathers' provision of financial support (Seltzer, Schaeffer, and Chaing, 1989: 449).'1 Role issues include degree of flexibility in the masculine parental role (Friedman, 1980; Hetherington and Hagan, 1986) and various forms of psychological disturbance arising from the threat to, or actual loss of, the parent-child relationship (Guttmann, 1989; Jacobs, 1986; Myers, 1988; Roman, 1986; Williams, 1986). The difficulty of disengaging the paternal role from the marital one is emphasized by Furstenberg and Cherlin (1991); other authors also indicate that when the spousal relationship ends, the father-child relationship is likely to be affected. The Macro Approach

It can be argued that there are three types of social structural explanations for paternal disengagement. Several analysts have looked at how the gendered division of labour in our society has constructed marital and parental roles and also how families reorganize following divorce (Arendell, 1986,1995; Barker, 1994; Bertoia and Drakich, 1995; Furstenberg & Cherlin, 1991; Kruk, 1993). Each of these analyses, according to its own particular framework, has shown how the parenting roles of caretaker/mother and provider/father are influenced by social and economic conditions, or negotiated within the context of these. Termination of marriage does not normally alter this division of roles. The caretaking mother and her children remain financially dependent on the providing father, for whom the provider role is unacceptable once it ceases to be entwined with the intact family and the marital relationship (Arendell, 1995). Some researchers, in their search for practical solutions to the problem of non-providing fathers, have claimed that weak and inconsistent policy is the reason support is lacking. Their position is that only stronger enforcement can remedy the problem (Bissett-Johnson, 1983; Chambers, 1979; Wachtel and Burtch, 1981; Weitzman, 1985, 1988). This analysis, which has influenced North American enforcement policies, rejects as irrelevant any proposed psychological links between support

Fathers and Divorce: Personal and Institutional Processes 17 default and limited access to the children. The linking of custody and access to issues of support payment is currently anathema in Canadian law, but it is emerging as a serious point in the divorce literature. The situation of fathers who must continue financial support though they have lost decision-making rights has been compared to 'taxation without representation' (Chambers, 1983). More recently, Arendell in her study of divorced fathers (1995) concluded that 'irrespective of the disaggregation within the law, issues of support and custody are entwined.' It has also been proposed that the state assume more responsibility for supporting children and mothers, and reduce the onus on fathers (Chambers, 1983; Eichler, 1990; Pulkingham, 1994,1995). Both psychological and sociological approaches have been used to study the two kinds of paternal disengagement. Wallerstein and Huntington (1983) found links among good economic support, a good father-child relationship, a psychologically intact father, and appropriate visitation patterns. The fathers who were best able to give priority to their children's needs were the ones who were the most consistent in their support payments and in their relationships with their children. The same study concluded that the predivorce father-child relationship did not predict the postdivorce relationship. Pearson and Thoennes (1988) concluded that access and participation were key predictors of payments and in-kind purchases (such as clothing and entertainment) by absent parents. A recent study of support compliance in Prince Edward Island also determined that it is the postseparation relationship between parent and child, rather than the preseparation relationship between them or between the parents, that best predicts compliance (Dept. of Justice, 2001). The relationship between separated fathers and their children is a vulnerable one. It also has a strong impact on the well-being of the children and their custodial mothers. The lack of continuity between predivorce and postdivorce fathering makes paternal disengagement a puzzling phenomenon, and one that clinicians and policymakers alike have attempted to explain. There seems to be some relationship between financial support and continuing contact, but its nature is unclear. Fathers' Experience of Separation and Divorce

Separation and divorce often produce intense emotional and psychological crises for men. Many authors have commented on the vulnera-

18 'Deadbeat Dads' bility over time of the relationship between non-custodial fathers and their children. Why does the relationship between fathers and children change so easily after separation? How important can the role of father be to a man's identity if that role can be abandoned, even though the abandonment causes psychological disruption? In his review of the literature pertaining to 'the psychological position' of the father in the divorcing family, Jacobs (1986) found that many suggestions that the perception that divorce requires 'a dramatic diminishment or total severance of their relationship to their children may be responsible for many of the severe psychiatric sequelae experienced by all family members following marital disruption' (3). Some of the consequences are dramatic increases in car accidents six months before and after divorce, and increased suicides, homicides, psychiatric admissions, and deaths due to illness. Jacobs describes two components of the 'involuntary child absence syndrome' (based on his own study of it in twenty-six divorced fathers), both of which have an important bearing on the question of identity. First, he describes the 'intense fear of child absence due [in some fathers] not to any significant legal reality but to the feeling that he would have to accept the role of second-rate parent if he chose to divorce' (44). It seems that the anticipation of having a relationship with a child redefined is almost as troubling as the actual experience. Practitioners will note that this is similar to the experience of mothers who face custody assessments or who have been threatened with custody battles by their husbands. This powerlessness seems to be what fathers experience when the threat arises (a threat that is usually more grounded in reality for fathers than for mothers, because of the bias in favour of mothers as custodial parents). Parents of both genders seem terrified of having to endure what Jacobs calls the 'cataclysmic rupture of their own normal adult development. It is perceived as a massive derailing of their sense of self accompanied by feelings that life will never be the same again' (48). I contend that the fear that one's experience and key roles will be forever altered is ultimately an issue of identity. Hetherington, Cox, and Cox (1976) were among the earliest divorce researchers to find that changes in self-concept and identity constituted a major area of difficulty for divorced fathers. The fathers they studied experienced marked emotional distress, including a loss of identity and a decline in feelings of competence. In addition to unrecognized dependency needs, they experienced depression and feelings of loss, anxiety, and

Fathers and Divorce: Personal and Institutional Processes 19 guilt. Custody battles can pose a direct threat to parental identity and often reflect an intense struggle to retain that identity.2 For a father whose role as a parent is reduced, loss of this identity compounds the loss of spousal identity. Two extreme paternal responses to these losses may be distancing from children and loss of contact on the one hand and, on the other, retaliatory battles that include violence of all kinds. The withholding of child support may be a gesture of despair, an act of anger and protest, or a step to regain a measure of lost power, or some combination of these. Myers (1988) lists the therapeutic issues for separated/divorced fathers as 'loss of control, sense of powerlessness, hurt pride, and desperateness' (71). Manifestations of fathers' humiliation and anger may include kidnapping, violent outbursts, the sexual abuse of a child, and failure to meet child support obligations. The element of control in non-payment is widely recognized by lawyers, clinicians, the general public, and ex-wives; it is also supported in the literature.3 Huntington synthesizes the problem behind the behaviour and emotional responses of many fathers: [They are] responses to an only dimly acknowledged sense of loss of control, order, and expectations. Their sense of justice is violated and rage ensues. The need to be in control of others as well as themselves is so basic to many men that when they believe themselves to have lost that control, they become extraordinarily anxious and feel justified in their rage at their ex-spouse and/or the legal system that has placed them in this situation. (1986: 63)

Arendell (1995) found that 'divorce unseated men, especially noncustodial fathers, from their positions of privilege in the family.' They managed their reactions to this loss of power through strategies aimed at managing the powerful emotions evoked and disavowed: 'pain, vulnerability, insecurity, confusion' and anger, among others. Arendell (1995) found that men's responses to divorce serve to distance them from feelings that are counter to the 'masculinist' ethic of competence, strength, and control. The fathers' rights movement extends considerably further the argument that fathers experience powerlessness. Victor and Winkler's analysis of this movement (1977) blames the women's movement for emasculating men in their role as fathers and then for using this as jus-

20 'Deadbeat Dads' tification to shut them out of their children's lives. Thus, all fathers are considered victims of the reduced status of fatherhood, and divorced fathers are especially victimized as they lose all rights. Victor and Winkler paint a striking picture of divorced fathers' 'psychic wounds.' They depict the divorced father as an exile shut out of his own home, often living in a furnished room and compelled to maintain his former wife and children in the lifestyle to which they have become accustomed. The authors seem unaware that they have confounded ownership, achievement, and the accoutrements of social status, with a man's identity as a caring parent. A similar scenario is conjured up by Wallerstein and Kelly (1980) in their exploration of the guilt and depression sometimes evoked for fathers by the visit-separation cycle: Tor Mr. H, it soon became an impossible task to fetch his two daughters at the home which he had built for the family he had lost and continued to long for. He could not bear to stand at the threshold and wait for the children, painfully conscious that another man was occupying his place' (1980:178). Some fathers respond by avoiding the painful visiting situation, which stimulates feelings perceived as unendurable. Although different from Victor and Winkler's perspective, this analysis also describes a problem that is social rather than intrapsychic. I believe this is why Wallerstein's study, though it succeeds in describing its subjects' responses to divorce, is ultimately unable to account for the phenomenon of fathers distancing themselves from their children. At the ten-year mark in this study, Wallerstein and Blakeslee (1989) admitted that they could not understand why many fathers - even some who were committed fathers before the divorce - were unable to carry that commitment (including financial support) over into the postdivorce situation (158). Analyses that consider fathers' emotional responses as socially constructed (Mandell, 1995) and gendered (Arendell, 1995; Bertoia and Drakich, 1995) help expand our understanding of the changes that transpire in many father-child relationships after divorce. Interpersonal Factors

The bitterness and conflict common between separated partners is usually attributed by each to the behaviour of the other. Johnston and Campbell (1988) suggest that the husband and wife who are separating are affected by each other's personalities, and by the interpersonal dynamics in the relationship, and that dissension is not caused in a

Fathers and Divorce: Personal and Institutional Processes 21 linear way. They attribute much of the violence observed in divorcing couples to 'interactionally triggered and sustained' factors rather than to 'ongoing personal pathology' (74). The loss of self-esteem or identity can lead to behaviour ranging from provocation or protracted conflict to retaliation and violence. According to Guttmann (1989), none of the variables associated with diminishing postdivorce father-child contact is as important as the spousal relationship. Furstenberg and Cherlin (1991) discuss the connections between the marital and parenting roles in an intact family and the difficulties of trying to disentangle them. They relate partners' efforts to try to be parents when they cease to be husband and wife to the struggle of separating spouses to 'establish a separate identity and an independent perspective' (27). The problem is that successful parenthood calls for sharing, cooperation, and interdependence, whereas divorce calls for independence and distance. Furstenberg and Cherlin (1991) imply that for men, parental identity is contingent on marital identity, so that when the latter is lost, the former is often not sustainable on its own. The structure of the intact family allows a distant father's relationship with his children to be mediated by his wife; with divorce, the motivation for this is gone on both sides. Many men who stop living with their wives and children no longer see themselves - and no longer are seen by their former wives - as full-fledged fathers. It is as if their license for parenthood had been revoked (34). In their poststructuralist perspective on fatherhood, Lupton and Barclay (1997) take the position that fathers' subjectivities are shaped by social discourses, and that parental roles and relationships are negotiated within the specific context of a marriage. Their study concludes that in a traditional marriage, the father's relationship with his children tends to be shaped by discourses that limit the development of nurturant behaviour and nurturant attitudes (133). This understanding of fathers' subjectivities has implications for interpreting the disengagement after separation. Arendell (1995) casts a new light on the subject of father disengagement: she found that those fathers in her study sample who were most tied to 'conventional ideologies and roles of the good provider and family authority' had the highest rates of support non-compliance (65). The implication is that commitment to providing for the family was, for them, part of a gendered discourse about who fathers are within the context of marriage. Termination of the marriage, therefore, is seen as a 'breach in the family' (62).

22 'Deadbeat Dads' The Social Realm In addition to personal losses, separating/divorcing fathers experience an encounter with the laws and institutions of the state in a way which is usually new for them. The court may become instrumental to their pursuit of self-esteem and identity. Johnston and Campbell (1988) maintain that parties to divorce with mild levels of 'narcissistic disturbance' tend to look to the courts for 'recognition of their feelings, validation of the Tightness of their views, and proof that they are not failures as fathers or mothers, men or women, and do not deserve rejection or belittlement' (80). Those with moderate levels of disturbances see the judge/mediator as 'an authority who will justify the parent's position ... a "win" in court protects their positive sense of self and the "vindicating" judge is often idealized. A judge who does not rule in their favour is negatively construed; seen as incompetent, biased, or misled; and treated with contempt' (85-6).4 For those with severe narcissistic disturbance, giving up litigation and the quest for revenge becomes almost impossible. 'If the judge decides in their favour, it justifies their negative view of the ex-spouse and their conspiracy theories. If the judge does not decide in their favour, he or she is seen as another conspirator or persecutor' (91). Identity changes in divorced fathers can also be linked to the social realm when they are considered from the perspective of identity theory. Identity theory is especially helpful in explaining the role of social interaction in identity formation (McCall and Simmons, 1978). According to identity theory, feedback from significant others is incorporated in the development of identity and in the weight assigned to an individual's various roles (Thoits, 1983, 1991). Generally speaking, the social feedback received by divorced fathers without custody highlights the fact that there has been a change of status, and that the nonresident/non-custodial parent is being defined negatively in relation to the other parent. This is a crucial point of interface between macro and micro, where the public or social nature of divorce proceedings can have an important impact on the personal identity of fathers. Arendell (1995) zeroes in on the gendered nature of divorced fathers' identity issues, and finds that many of their emotional experiences are incompatible with their sense of masculine identity. Her exploration of the strategies men use for managing these potentially undermining emotions leads her to state: 'At the core of their efforts at identity maintenance and repair was defiance and protest' (138). This perspective

Fathers and Divorce: Personal and Institutional Processes 23 allows us to see individual responses in the larger context of social discourses and the construction of gendered identities. Defiance and protest take on a meaning beyond the realm of personal selfishness and irresponsibility, though without necessarily excluding them from the discussion. The changes experienced by fathers are not always destructive. Riessman (1990) attributes the increased postdivorce involvement of some fathers to their recognition - often for the first time - of the importance of relationships. Contact with the children necessitates planning and the establishment or reordering of priorities. Still, an identity crisis may persist. Unlike others who write about fathers' responses to divorce, Riessman sees fathers' identity issues as arising out of structural conditions: 'As private problems become public and as they lose an important seat of power, some men feel that core features of their identities as competent and achieving people are thrown into question' (183). Issues of Power

Foote (1986) theorized that non-payment of support constitutes resistance to the operation of institutional power. My own findings on the rationalizations of fathers who do not pay child support are consistent with this perspective. The perspective of those who failed to pay was that the judicial system had aligned itself with their former wives. They saw the state's involvement in the collection of child support payments as supporting the interests of women rather than the interests of children. They perceived women as the winners: it was the women who got the children, the money, and the power over their former husbands.5 Jordan (1988) discusses the link between the sense of victimization divorced men may feel when they hold their wives responsible for the divorce and the negative qualities attributed 'to the society or system which is seen as supporting women and their actions.' This finding was supported in my own previous research (Mandell, 1995), as well as in the present study. The failure of the intimate spousal relationship is extended to one's relationship with the social world; at the same time, the experience with the social world is being internalized. In short, changes in self-concept due to withdrawal of social support for one's identity combine with the realization that one has lost power to produce intense psychological distress.

24 'Deadbeat Dads' There seems to be a connection between power and identity. During the process of separation, the fathers I interviewed (Mandell, 1995) had encounters with their former wives and with the legal system that led them to see themselves differently - not just as fathers but as individuals, as men. Moreover, they perceived that others saw them differently as well. They seemed to perceive that they had lost personal power. This perception is not limited to separated fathers alone, of course. Much of the writing on fatherhood in the past few decades has been characterized as politically right wing in orientation, and as 'seeking to position men as oppressed by the social changes' wrought by the feminist movement (Lupton and Barclay, 1997: 2). Mirowski and Ross (1983) hypothesize that 'social positions characterized by powerlessness and by the threat of victimization and exploitation tend to produce paranoia' (228). This perspective brings into focus the role of institutions in the disempowerment of groups/individuals. The discourse of oppression is relevant to divorce, because divorce is an institutionalized process that entails the language of labelling and disparagement. The court intervenes in a father's relationship with his children to determine how much he will pay for them, and how often; it also becomes involved in his relationships with his former spouse and with his employer. The man tends to develop the perception that bad laws and a depersonalized bureaucracy, rather than his own behaviour, have made him a "bad guy/ Because former wives have also often labelled fathers 'bad guys,' fathers may interpret the legal system's power to judge, label, enforce, and punish as executing the former wife's will. For most men, this is a reversal of their usual expectations and experience. This is an alternative, structural perspective on Jacobs's observation (1986) that the divorce process is the first experience many men have of 'sexual discrimination.' What they perceive as antimale or antifather discrimination may, however, actually be a loss of accustomed male privilege. Noncustodial fathers lose their position of power in the postdivorce family and consequently their control over their children and former wives (Bertoia and Drakich, 1995). They feel abused and unfairly treated by the courts. Arendell (1995) understands non-payment as a 'symbolic and compensatory act' (127) - as a response to the loss of authority entailed in having the manner of provision externally dictated. In the literature on why fathers tend to disengage from their children, the issue of identity emerges as salient. The fundamental losses

Fathers and Divorce: Personal and Institutional Processes 25 and changes entailed in separation precipitate a crisis of identity; associated with this crisis are issues of masculinity, power, and control. These relate not only to the particular former spouse and children, but also to the social status of fathers, and of men in general. For many men, this may be a reversal of their normal experience of masculine dominance. The Literature on Fathering The question of masculine identity and male privilege following divorce needs to be placed in the larger context of fathering and the role of fathering in masculinity. The literature on masculinity and on fathering blossomed in response to the growth of feminism in the West and the attendant changes in social relations between men and women. Before 1970, the literature on fathers was very limited. Much of the research done since then has been termed 'an extension of the work that has been carried out with mothers/ insofar as it has taken motherhood as paradigmatic of parenting behaviour and viewed fatherhood as a complementary role (Guttmann, 1989; Mackey, 1985). Research on fathering from the 1970s and 1980s has been criticized for presuming that fathers play only a marginal role in families (Russell, 1979; Stearns, 1991); moreover, much of the research has been based on information provided by mothers (Guttman, 1989; Russell, 1979). Writing done about fathers in the 1990s seems to be related to a rising interest in the various dimensions and experiences of masculinity. Recognition of multiple masculinities has led to an interest in new perspectives on where fathering fits. Fathering, Masculinity, and Masculine Privilege The notion that institutionally processed divorce constitutes an assault on male identity (from a feminist point of view, on male privilege) is crucial to this research. A thorough understanding of the role of fathers in Western society makes it clear that even at the best of times the position of father is fraught with ambiguity and inconsistency. Fox (1986) and Barker (1994) have noted fatherhood's relative lack of importance as a marker of masculine identity, compared with the centrality of motherhood in feminine identity. Baber and Dryer (1986) were unable to find any 'systematic investigation' of the role of fathering in individual male development (139), and there is little in more recent literature

26 'Deadbeat Dads' that focuses on this topic. Lupton and Barclay (1997) point out that though 'one would expect that fatherhood would be a pivotal focus' of academic writing on masculinity (or masculinities, as a postmodern view would have it), this is not the case (3). They go on to say: 'It is difficult to imagine a book addressing femininities with such limited references to the role and experiences of motherhood (or indeed, nonmotherhood) and their meaning for women's experiences' (4). The reality, then, seems to be that divorce does not create a new problem so much as it highlights an already existing one. That problem - the apparent lack of salience of fatherhood to masculine identity becomes both more visible and less manageable when a family separates. Changes in masculine models are manifested in references to a 'lack of confidence' in Western men (Tolson, 1977) or a 'crisis of masculinity' (Levant, 1992; Fleck, 1976). This language reflects the struggle to redefine the father and his worth in the latter part of the twentieth century. In his critical work on 'lone fathers and masculinity,' Barker states: Sociological theories do not adequately theorize the positions of men in families, and consequently cannot adequately explain lone fatherhood. In different ways functionalist, marxist and feminist theories of the family and roles within them all tend to perceive men as fulfilling a marginal role in their families, because in the first instance society dictates it, in the second instance the needs of the economy dictate it, and in the third instance patriarchal power enables it. (1994: 6)

He adds that each of the three theories fails to give a clear picture or analysis 'of how men live their lives within families' (8). Consistent with Barker's claim (1994) that 'models of masculinities and models of fathering are not easily congruent' (1), a review of theories about gender identity (i.e., psychoanalytic perspectives, sociocultural theories, sociobiological or evolutionary theories, cognitive development theory, social learning theory, and life span theory) reveals that in each case, the construct of masculinity corresponds to the prevailing Western stereotype of men. This stereotype includes aggressiveness, decisiveness, active sexuality, physical and intellectual superiority, and - in an intimate social context - protectiveness and leadership. The 'ideal' character of Western men has been represented as independent, rational, and non-expressive. Most importantly, none

Fathers and Divorce: Personal and Institutional Processes 27 of the mainstream theories posit fatherhood as being salient to masculine identity. This might seem to be a handy explanation for why divorced fathers are likely to disengage from their children; however, such a conclusion presumes that theories of gender identity describe what 'must be' rather than what 'is.' My own position is that representations of masculinity and of fathering are social constructions shaped by particular ideologies rather than by 'objective' realities. Traditional notions of masculinity make the most sense when approached as complementary to traditional notions of femininity. Chodorow (1989) refers to 'feminine and masculine personality and male dominance in a contingent, relationally constructed context' (187). Men who fit the traditional ideal need passive, dependent, and emotional women (and children) who require their material assistance and guidance, who submit to their dominant will, and who fulfil the interpersonal functions of affective relationship. The patriarchal family has been understood by mainstream sociological analysis (Benson, 1968; Parsons and Bales, 1955), Marxist analysis (Tolson, 1977), and earlier feminist analysis (Chodorow, 1978; Dinnerstein, 1977) alike as a neat division of human functioning into instrumental and expressive categories. In the literature on fathering there does not seem to be much, if any, debate about whether basic differences exist in the parenting behaviour of men and women. Instead, there is a prevailing assumption, based on evidence from various disciplines, that in Western society, wives/mothers give love and care while husbands/fathers provide practical support. This model of complementarity supports, not merely describes, traditional gender roles by focusing on the differences (Lupton and Barclay, 1997). In patriarchal culture the father has been understood to represent society in the family. Tolson (1977) critically describes how this condition plays out in the middle class 'myth of domesticity': the working or middle-class family constitutes a haven for the father from the world outside, where he is frustrated by the unfulfilled promise of power. At home he can exercise authority and obtain some love and respect in exchange for the protection, concern, and economic support he offers. Tolson's analysis paints a picture of a detached, largely symbolic relationship between father and children similar to the traditional model sketched by Freud, Levinson, and others, where the father's interest is essentially self-centred and his chief reward is a compensatory modicum of dominance.

28 'Deadbeat Dads' Love and marriage have been characterized as having been 'feminized' in the course of Judaeo-Christian cultural history (Cancian, 1987), as has caring itself (Lupton and Barclay, 1997). According to Cancian, the gender polarity described above is a product of the division of labour within a sexist industrial society. As work became separated from home life and the former was designated men's domain, heterosexual 'love' and relationships became the responsibility of women. Thus, the roles of father and husband became secondary in men's lives, as their ways of loving focused on practical assistance, problem solving, and shared activities rather than on selfless service. Cancian sees both styles of loving as socially constructed in support of a particular socioeconomic arrangement. The main counter-argument to the claim that gender roles are socially constructed is the position that 'biology is destiny.' A number of cross-cultural studies have found a division of behaviours, attitudes, and emotions along gender lines (Mackey, 1985; Bergen and Williams, 1991; Rossi, 1984; Yorburg, 1981). The same has been found among animal groups. All of this seems to support the idea that some gender differences are universal and perhaps natural. This position is not without its challengers, such as Olsen (1993): 'Perhaps the most we can say with certainty is that even if biological constraints exist that may ultimately limit the possibilities for remaking society, we will not be able to determine the part played by such constraints until we have correctly assessed the part played by the social construction of gender roles' (85). This social construction is shaped and reinforced not only by the family but also by legislation, systems of education, the media, and working conditions. Even religious belief systems older than the capitalist system, which arise from patriarchal traditions, tend to support this division of family roles. A number of authors point out that culture does not determine parenting in a simple or direct fashion (Erickson and Grecas, 1991; Feldman and Nash, 1986; Seward, 1991). It seems that fathering is determined by the interaction of many important influences, such as culture, class (including occupation and education), religion, kinship patterns, and individual resources and personality. How this happens is something that is explored by poststructural theorists. Lupton and Barclay (1997) emphasize that the meanings of fatherhood are 'dependent on which discourses are being used to represent it.' Rather than being the static product of external forces, these meanings (or subjec-

Fathers and Divorce: Personal and Institutional Processes 29 tivities) are 'dynamic, contextual and a continuing project' (5); they are created not by cultural processes, but through them. Nurturance and Responsibility Given the assumptions about gender-based family roles in the literature on parenting (Lupton and Barclay, 1997), this question remains: How did nurturance come to be defined as that which only mothers do? This question does not intend to deny that nurturance is, in fact, mainly the domain of mothers; rather, if we take the position that this is a socially constructed role, the question means to get at why it has been constructed in such a way that this domain is assigned to mothers. Maternal nurturance is identified with selfless giving and caring based on an understanding of others' needs. Mackey (1985), Russell (1979), and Rossi (1984) each cite cross-cultural evidence of men's capacity to nurture in the way that is attributed to women in the dominant culture of North America. Wallerstein and Huntington (1983) found that fathers' awareness of and concern for children's needs, separate from their own, was the best predictor of a positive fatherchild relationship after divorce. Hetherington and Hagan (1986) note that men in non-traditional marriages with more flexible sex roles adjust better in their relationships with their children following divorce. Other views of nurturance can be found in the literature. Pleck (1976) identifies the hard-working kinds of behaviour characteristic of the instrumental side of the male sex role as forms of selflessness. Fogel, Melson, and Mistry (1986) depict the modern Father-asBreadwinner, stripped of much of his historical value as moral guide and social mediator, as nurturant in his own way. If we accept that the family's major responsibility is the care of its children, then economic support of them can indeed be considered to reflect nurturance. Undoubtedly, this is how many fathers see it themselves. It has also been argued that the traditional code of masculinity defined hard work and self-sacrifice as a masculine way of demonstrating care (Fein, 1978; Levant, 1992). What seems strange is that the father's role in North American culture should have become largely limited to this function. Lupton and Barclay's study (1997) of fathers' subjectivities led the authors to conclude that the lodging of nurturance with women arises from 'cultural expectations and assumptions around gendered bodies' (147). They make a point that has significant bearing on the question of

30 'Deadbeat Dads' paternal nurturance in the postseparation context: 'Men and women ... are negotiating parenting arrangements in a context in which it is still considered that the mother is more important to her child's welfare than the father and "instinctively" possesses a greater capacity for nurturance' (147). The fathers Lupton and Barclay interviewed had for the most part been released from the 'regular embodied caring' (148) for young children, and simply did not develop the capacity to read their children's needs that one would expect from a mother - nor, for that matter, the capacity that most mothers might expect of themselves. The issue of responsibility is less fundamental than that of nurturance, but it is also important to an analysis of fathering. A segment of fathering literature has focused on father-child interaction, as opposed to the father's function as sex-role model. Lamb (1987) has concluded that although there seems to be some basis for the belief that fathers are more involved with their children than they used to be, 'the discrepancy between mothers and fathers is especially great in the area of what we have called responsibility ... Mothers are identified with caretaking, fathers with play' (11). Responsibility, which in this context means meeting the day-to-day needs of the child, is central to the role of the 'primary caretaker.' Lamb's statement may seem unfair to fathers who support their families through hard work, but in the context of social conditions that feature a large proportion of mothers working full-time, the continuing discrepancy between mothers' and fathers' involvement in housework and child care becomes problematic. Lamb (1987) claims that 'many men continue to feel that active parenting and masculinity are incompatible,' and that they therefore resist increasing their part in child care despite changes in female employment (18). This resistance arises even in societies in which public policies strongly support equality between the sexes. Bertoia and Drakich (1995) offer an important insight into fathers' views of their parenting responsibilities, this one from the perspective of noncustodial fathers, whom they observed in meetings of fathers' rights groups. What the researchers heard in these fathers' descriptions of shared or co-parenting was a desire, not to share equally in care and responsibility, but rather '[to continue] their parenting role prior to divorce' (241). Thus, even when the fathers were strategically emphasizing issues of equality in order to justify claims for shared parenting, the model of fathering they invoked was that of the 'helping' father what I refer to in my counselling practice as the 'assistant parent.' One view holds that men are not intended by instinct for family life;

Fathers and Divorce: Personal and Institutional Processes 31 rather, they have been bound to their mates and offspring by the ties of marriage and the family culture that has evolved. Family life is said to have begun when the hunter began willingly to share his food with his mate and child (Stearns, 1991). This story has been used as a rationale for the sexual division of labour, which is also supported by the biological reality of maternal lactation (Rossi, 1977). Masculinity seems most comfortable when directed toward activity in the external world of the modern-day 'hunt' - that is, toward activity that adopts the 'intrusive' masculine mode in meeting the demands of the external social world. Responsibility for fathering seems to have been channelled primarily into provision, leadership, and authority, with the latter two in decline. The question is what becomes of parental responsibility when some aspects of it become less salient. Historical Changes in Fathering

When we understand fatherhood as socially constructed, we can more easily see how it reflects or is in tension with social ideals of masculinity. Modern fatherhood has been recognized as a human invention quite separate from procreation itself and therefore as subject to considerable variation. Demos (1981) tries to outline the history of fathering in Anglo-American culture by positing that there was a 'general reordering of domestic life' (168) in the transformation from premodern to modern fatherhood. He points out that the function of premodern fathers as providers was 'embedded in a larger matrix of domestic sharing. With modernization it became differentiated as the chief - if not the exclusive - province of men' and became located outside the household (168). The father's location in the larger world bestowed a new status on him when he returned to the household. Demos talks of the creation of 'the Victorian patriarch' (176-7). Stearns (1991: 39) argues that as patriarchal authority declined historically and the community became 'less and less of a comfort, the nuclear family began to be seen more as a place where support and warmth could be found.' Benson (1968) characterizes the traditional family as 'maledominated, female-serviced' (310). Modern patriarchal privilege, then, offset the losses involved in working for wages outside the home. Lupton and Barclay's illuminating chapter (1997) on poststructural theorizing of fatherhood cautions against a reductionist social constructionism that would position 'fathers qua men' as oppressing their female partners through the level of their participation in the areas of

32 'Deadbeat Dads' family and work. In keeping with a postmodern emphasis on recognizing complexities and contradictions, the authors are intent on understanding the day-to-day reproduction of dominant discourses and practices in which both partners participate and which produce power that can both oppress and liberate. Models of Fathering

The literature on fathering delineates three models of fatherhood: traditional, modern, and emergent (Fein, 1978; Tripp-Reimer and Wilson, 1991). The traditional model is the instrumental half of the instrumental/expressive dichotomy, embodied in an emotionally unavailable parent who sees to his family's material and moral well-being. The modern model reflects the view that father-child interaction is important to successful child development. The emergent perspective sees potential for nurturance in fathers and recognizes that parenting offers benefits of identity to fathers as well as to mothers. The literature that reflects this third model has shifted its focus 'from a concern with fathers as persons primarily involved in the economic support of the family to a view that places increasing emphasis on the role that fathers play in the direct care of children of all ages' (Lamb, 1987: 4). The emergence of new ideals does not mean the old ones disappear; various models coexist with varying degrees of acceptance. Researchers generally agree that changes to fatherhood are occurring; however, there does seem to be a gap between the 'culture of fatherhood' (LaRossa, 1988) and the practice of fatherhood. Moreover, the new culture of fatherhood does not represent a consistent ideology, nor should it be expected to do so. This new culture does seem, however, to be associated with changes in models of masculinity in the West. Some writers attribute the current re-evaluation of male stereotypes to the effects of the women's movement (see, for example, Clatterbaugh, 1990, and Nock, 1998). Broader social and economic factors have also been operating, however. Setting aside the direct threat of having to share power and resources, men's resistance to changes sought by the women's movement is understandable from the perspective of 'attachment to the privileges they accrued from the sexual division of labour between housewives and breadwinners' (Ehrenreich, 1983:103).

Fathers and Divorce: Personal and Institutional Processes 33 The Effects of Industrialization

In the premodern agrarian/subsistence economy, all family members shared in whatever labour was required and in the products of that labour. In the industrial economy, wages were earned away from the home and the 'family wage' became a necessary principle (Ehrenreich, 1983). This involved a sharp division of roles. This social construction of marriage emphasized the commitment to share as well as dependency on that sharing; in return for sharing the wages he earned, the working man was to receive personal care and have his children reared. For a time, 'the notions of success, masculinity and being a good (i.e., sole) provider were ... tightly intertwined' (Ehrenreich, 1983: 103). Ehrenreich explains that the 'breadwinner ethic' is indeed an ethic, not a biologically determined role, and as such has been shaped by a particular ideology. She argues that the breadwinner role was supported by 'an enormous weight of expert opinion, moral sentiment and public bias, both within popular culture and the elite centers of academic wisdom' (12). Theoretical rationalizations that ascribed to the role of provider the attributes of maturity and successful adaptation rendered adult masculinity indistinguishable from the breadwinner role. 'It followed that the man who failed to achieve this role was ... not fully masculine.' (20). The socially constructed association between irresponsibility and effeminacy/homosexuality made men take up the breadwinner role to prove their masculinity, or to seek ways of avoiding that role without compromising their masculine identity. Premodern Western fathers held a high level of authority because of their control over property; modern wage-earning fathers no longer had such power. Fathers lost their ability to confer or withhold property; they were also distanced from their families by work away from home, and replaced as moral/religious teachers by formal education. 'Fatherhood declined in this context, as a practical force in the lives of families and of men themselves' (Stearns, 1991: 39). Ehrenreich (1983) argues that the exchange of male support for women's services began to break down when men began learning to do for themselves, and when products became available to replace wives' labour, which became increasingly devalued. It thus began to look as if men were contributing more than their fair share to the arrangement (78-9). Ehrenreich cites Charlotte Perkins Gilman, the

34 'Deadbeat Dads' early feminist, who observed that as men became increasingly responsible for the economic support of the family and as women became economically dependent on them, men seemed to be paying women for their services 'in inverse relation to the work performed' (5). Ehrenreich claims that the ideology which supported the breadwinner ethic has collapsed. She argues that the agenda of separating the role of provider from masculine identity and status has gradually been met in North America. From a Marxist feminist perspective, the gendered division of labour in an industrialized economy supports the mode of economic production. This position is articulated by Catharine MacKinnon (1989): 'Capitalism expresses the same authority structure as does the family, through its organization, distribution of wealth, and resource control' (61). From this perspective, masculine identity is split along the lines of dichotomy inherent in capitalist social relations (i.e., work versus home, work versus leisure, work versus 'life') (Tolson, 1977; Olsen, 1993). Changes in Marriage and Women's Rights

Women in most Western societies are far freer now than ever before to initiate divorce and to live independently. As a result, the power of husbands and fathers has been dramatically curtailed. Demos (1981) suggests that this may well have changed fatherhood 'as a category of social experience' for men. Recognition of a woman's right to seek the dissolution of her marriage without losing custody of her children means that men in families have a new level of accountability. Increasing civil rights and political influence for women has led to changes in family law, especially custody and support law. These changes have fostered greater independence for women.6 At the same time, men's legal obligations to their families, even after dissolution, have been increased. In 1881 the province of Ontario granted mothers equal rights to guardianship of their children; in 1888 it obligated deserting husbands to support their wives; in 1922 it assumed jurisdiction over child support. Before these reforms, husbands had been the legal guardians of their children, and a wife who left home lost all rights to her children and to property (Statistics Canada, 1983). Victorian ideology increasingly saw children as special, vulnerable people and mothers as better suited than men to care for

Fathers and Divorce: Personal and Institutional Processes 35 them and to serve the needs of the family. Cancian (1987) characterizes the Victorian 'blueprint for marriage' as one that emphasized duty: women's duty was to care for the family, and men's was to provide and protect. Emotional intimacy between husband and wife was not considered central to this schema. This ideology reflected a complex of shifting beliefs and sex roles associated with broad changes in Western life that began to come about toward the close of the nineteenth century. Women's increasing 'visibility as competent adults' (Walters and Chapman, 1991: 87) - a visibility arising from new property rights and (eventually) enfranchisement - supported the belief that they could be adequate caretakers. At the same time, theory about early childhood development emphasized the value of attentive caretaking. The mother's role as nurturer and teacher became increasingly valued for children's emotional well-being and for family unity. 'Fathers were still heads of households, but the rights of parents in their children had shifted' (84). This ideology was also reflected in child custody laws: between the late nineteenth century and the mid-1970s, the basis for custody shifted to the 'doctrine of tender years,' which favoured mothers as custodial parents when young children were involved in a separation. By the 1920s and 1930s a new 'blueprint' for marriage had emerged in the West, known as companionship marriage. 'This blueprint identified the family with marriage, not parenthood, and emphasized emotional and sexual intimacy between husband and wife' (Cancian, 1987: 34). The shift away from duty toward self-fulfilment was a by-product of social changes that took away the family's traditional economic and social functions. After the Second World War, North American women were 'encouraged' out of their wartime jobs and back to their children and kitchens (Kome, 1985; Pierson, 1986), and the companionship marriage gave way to a revised form of divided duties and extreme commitment to the family: 'The Victorian ideology of separate spheres was still partly intact; it was the husband's job to support the family, while the wife was the center of home life. But the authority of the husband had declined - he was to be more of a pal to his children and more of a companion to his wife' (Cancian, 1987: 37). Stearns sees this as an outcome of a reduced valuation after the 1940s of 'aggressive male personalities which weakened the legitimacy of aggressive male role models' (1991: 47).

36 'Deadbeat Dads' View of Children Under traditional patriarchy, children were considered the property of the father and assets of the family. Beginning in the later nineteenth century, children came to be seen less as chattel and more as dependent individuals, and fathers' rights with regard to children changed dramatically. Fox (1986) sums up the interaction of this development with those already mentioned: ... redefinition of a father's property interests in children to a personal relationship interest and the extension of this relationship interest in children to the female parent, the growing spatial separation of paid work from domestic life that left women at home as caretakers of children, the emergence of the child development movement that emphasized the importance of the mother as caretaker during a child's early years, the introduction of child labour laws, which converted children from an economic asset into an economic liability, and support laws holding fathers responsible for support of their minor children, whether or not they retained physical custody of them.

Obstacles to Change The emergent fathering model enjoys only limited acceptance. Also, there are important structural factors that support continued division in parenting roles. These factors relate mainly to gender-based economic inequalities that render fathers less willing to seek opportunities to increase their participation in child care. For example, the normally higher earning power of men makes it likelier that couples will choose to forego the woman's income and have her stay at home as caretaker. Also, workplace and social welfare programs such as maternal leave and maternity benefits do not yet generally recognize fathers as legitimate caretakers. Then there is the fact that the breadwinner stereotype persists as a force in society. We have seen how the virtual fusion of masculinity with the instrumental/provider role has made it very difficult for men to consider roles other than those as viable options. Roman argues that industrialization - in concert with psychoanalysis and sociology - has 'played key roles in restricting the conceptual options open to adults' (1986: 87). Among some ethnic groups, policies that impose changes on fathers

Fathers and Divorce: Personal and Institutional Processes 37 for which they are not prepared by their socialization will not only be rejected, but may actually alienate men from their fathering roles. Furthermore, mothers need to be accepting and supporting of increased father involvement, lest conflicts over values and power create family dissension (Lamb, 1987). In this exploration of the salience of fathering to masculine identity, I have identified historical variations that illuminate the socially constructed nature of parental roles. Fathering, masculinity, and the role of provider have long been intertwined, but how much so has depended on social and economic conditions. In the current transitional era of shifting gender roles and increasing openness to diverse forms of family life, there is no universal ideal of what men or fathers should be like. Rather, we find multiple and sometimes contradictory representations. Where discontinuities arise between masculinity and fathering, men who are parents have to cope with the tensions among their several identities. The Construction of Fatherhood in the Context of Separation/Divorce The tender years doctrine has been replaced since the 1980s by the doctrine of the "best interests of the child/ The latter is the 'paramount' principle in determining custody under the Divorce Act of 1985; it is also the sole principle under Ontario's Children's Law Reform Act of 1980. Likewise, economic support is now the responsibility of both parents. Nevertheless, in the vast majority of cases in North America (and in most Western countries), mothers retain custody of the children following separation. Canadian statistics reveal that 86 per cent of children live with their mother after separation, 7 per cent with their father, 6 per cent in a joint arrangement, and the remaining 1 per cent in an alternative arrangement (Marcil-Gratton and Le Bourdais, 1999). There is a 'sturdy minority' of actively participant fathers; even so, the fact remains that 'until further notice, [Canadian and American women] have babies in the expectation of being the principal responsible parent; and men have babies on the understanding that for them the role is optional' (Crean, 1988: 7). At the same time, fathers most often are obliged to pay child support (Crean, 1988; Kahn and Kamerman, 1988; Weitzman, 1985,1988). In arguing against the social bias in our culture that favours mothers over fathers as caretakers, Fox (1986) challenges the very use of the

38 'Deadbeat Dads' term noncustodial father: 'In defining the noncustodial father, one could argue on semantic grounds that "noncustodial fatherhood" is a contradiction in terms. "Fatherhood" connotes the shouldering of the full complement of responsibilities and privileges of the parent role, whereas "noncustodial" connotes a restriction, limitation, or cessation of those same obligations and privileges' (394). We recall here the claim by Furstenberg and Cherlin that, because of the structural ambiguity of the divorced father's role, many fathers 'retreat from parenthood.' If the emergent model of fathering were becoming the norm, Fox would be accurate in his criticism. We have already seen, however, that in our culture, though this model may be idealized, it is by no means normative. Some fathers do actually increase their direct involvement with their children after separation. Most, however, become even more distanced (Hetherington, Cox and Cox, 1976; Seltzer and Bianchi, 1988; Kruk, 1993; Wallerstein and Blakeslee, 1989). Furstenberg and Cherlin (1991) conclude that 'we may be attempting to engineer a direct role for fathers in divorced families that doesn't often exist in nuclear families' (119). In the intact family, asymmetry in the father's status as parent either is not perceived as disadvantageous or is compensated by other conditions. The 'family distribution system is disrupted when divorce occurs' (Furstenburg and Cherlin, 1991: 47). Lamb (1987) notes that in our culture, the key channels of influence available to the father aside from breadwinning are emotional and instrumental support of the mother and direct interaction with the children (i.e., 'through caretaking, teaching, play and one-on-one interaction') (7). This suggests why father's influence - thus mediated by emotional and instrumental support of the mother - most often ends or becomes negative following separation. Anyone who has worked with divorced families has encountered mothers who complain about being undermined as a parent by the ex-husband. This problem undoubtedly exists for separated fathers as well: they are often undermined by former spouses who mistrust them. A custodial mother, however, continues to have significant contact with and influence over her children, whereas the fathers Lamb is describing have no choice but to depend on the indirect type of influence that cannot work without the good will of the mediating parent. This can result in a form of dependency on the part of separated fathers that renders their wives more powerful as parents. This dependency on the former wife in the face of her 'withdrawal from the role of intermediary' may be 'deeply resented and seen as abuses of power on her part (Arendell, 1995: 63)

Fathers and Divorce: Personal and Institutional Processes 39 Whatever the model of family and fathering, the role of the noncustodial parent is legally narrowed. Canadian legal analyst Michael Cochrane (1993) states: 'The distinction between custody and access is basically the difference between having the right to make all decisions regarding a child and simply being entitled to information about the child's health, education and welfare, and to occasional time with the child' (74). Put differently: 'Access has been characterized as anything left over after custody' (Cochrane, 1993: 77). In sum, the father loses his power in relation to the mother, while retaining limited access to his children under conditions largely devoid of responsibility and authority. Within the breadwinner/protector/social mediator model, the father unquestionably loses the latter two functions while retaining the first.7 The withholding of the provider function through noncompliance with child support obligations thus effectively cuts the non-custodial father's ties with his child and further defines him as a non-parent. If the conception of fatherhood is expanded (as in the modern and emergent models) to include caregiving, this function is also diminished or dissolved by loss of custody. Access to the children is often so restricted that the father has no opportunity to offer caregiving. He loses the benefits available from the intimacy of caregiving and the positive experience of successful parenting. The contradictions among models of fathering and models of masculinity are rendered increasingly complex when the father lives apart from his spouse and children. The representations of fatherhood that are institutionalized through the law may or may not be congruent with a given man's identity as a father or his self-image as a man. Institutional Regulation of Marriage and Separation I turn now to the system whereby fathers experience reconstruction of their role after separation. I outline the legislation and processes that structure the relations of the separated or divorced family, and plot the various 'trajectories' that an individual might follow through the separation process. Divorce constitutes state permission not only to end a marriage, but also to marry again. The right to divorce was once unavailable even to monarchs; later it was granted in England and Canada only to the very wealthy and influential; now it is a democratic and relatively accessible procedure. The state no longer intervenes around the termination of the sexual relationship if the couple seeks a separation or an uncon-

40 'Deadbeat Dads' tested divorce; however, it is always involved in the division processes, which are highly regulated. In Western family law the emphasis has shifted from intense regulation of the grounds for divorce (i.e., where fault lies) to the regulation of property division (Glendon, 1981). The ancient concept of separation a mensa et thoro (from bed and board) does not involve legal or religiously recognized dissolution of the marriage. The spouses simply live apart. Today in Canada, this kind of separation is available to married and common law couples, who can thereby avoid state regulation of the separation of their lives, assets, and children. If couples are legally married and wish to terminate that status under the law, they must obtain a divorce under the federal Divorce Act of 1985. In such cases the state exercises a certain amount of control over the termination process. The extent of the state's control is highly variable. Many lawyers and divorce counsellors advise clients that the less they are able to achieve by mutual consent, the less control they will have over outcomes, and the more they will require documentation. Also, the time required for dispute resolution may be increased by lack of agreement. Rules and Procedures The divorce system is highly rule-bound. According to Cochrane, an uncontested divorce has become a 'purely procedural event' in most provinces since 1986. The couple need not even attend court; the divorce can be accomplished through procedural means between the lawyers and the court. After the final judgment, the couple files appropriate forms and supporting documentation with the court. In 1993, the national average of Canadians using this procedure was 68 per cent; in some provinces the figure was as high as 98 per cent (Cochrane, 1993: 58). Seldom do Canadians choose the option of a joint petition for divorce. In 1998 in Canada, 10,010 of 69,088 divorces (14 per cent) actually had a hearing, and of these, only 77 were contested (Statistics Canada Divorce Database, 1998). If there are disputes about property division and/or custody and access, the procedures are complex. They regulate the presentation of information to the court and structure the parties' behaviour toward one another and toward the institutions. The small proportion of contested divorces nationwide may suggest that only a few divorcing couples face the problem of dealing with the system, but this is not the case. Many couples who have not yet decided whether to divorce take

Fathers and Divorce: Personal and Institutional Processes 41 issues of interim custody, access, and support to the family courts. Spouses who have arrived at separation agreements without court involvement may find themselves resorting to the courts for resolution of difficulties. The separation/divorce process can be very expensive. Lawyers' fees, court filing fees, and the costs of expert testimony, accounting consultants, and time taken off work to attend meetings or court can add up quickly. Cochrane estimates that the average contested divorce takes about two years to complete and costs $10,000 to $15,000 in legal and court fees. In Ontario, additional costs are incurred if expert help is needed for the valuation process used to divide assets between spouses. The rules that govern the process are known formally as The Rules of Practice or The Rules of Court; Cochrane characterizes them as 'the rules of the game/ These 'provide for virtually everything that can happen between the institution of proceedings ... and the obtaining of a judgment' (43-4). The Rules also provide for appeals, enforcement of court orders, and many other matters. One published version of the Rules, with case summaries interpreting them, runs nearly 1,100 pages in length, according to Cochrane. In their regulation of the presentation of information, the Rules 'prescribe everything from the colour and size of the paper to their form and content' (44). To complicate matters, 'the various levels of court within each province have their own sets of rules ... Every level of court for family law has its own set of rules ... If used properly they can provide a great deal of control over the progress of a case' (44). Many sources indicate that these rules, and the procedures they govern, are often not used properly, with the result that a considerable degree of control is lost to all concerned. In sum, the process is fraught with technical requirements that demand technical expertise. Cochrane emphasizes the need for sound legal advice and urges divorcing couples to monitor how the lawyers are handling the case at every stage. Current Legislation

If the rules governing separation and divorce procedures are perplexing, so is the relevant legislation. Canada's Divorce Act sets out the provisions for divorce. Only federally appointed judges, who sit on superior courts (which have different names in different provinces), may grant divorces. There are variations in divorce procedures among the provinces; however, the substantive provisions are uniform across

42 'Deadbeat Dads' the country. In Ontario, the Superior Court of Justice hears all cases involving a claim for divorce or for the division of family properties. The Superior Court also hears issues related to child and spousal support, and custody of and access to children, if these issues are raised in a divorce proceeding. The Ontario Court of Justice hears cases involving child and spousal support, and custody of and access to children, but only if these are not part of a divorce proceeding. This court also hears child protection matters. There has been a significant shift toward expanding and improving Ontario's justice system with a unified model of court, where all family matters are heard in a single court. This court is officially called the Family Court of the Superior Court of Justice, but is often referred to as Unified Family Court. A divorce judgment may provide only for the terms of the marriage dissolution (called the 'main relief under the act), or it may also include the terms of 'corollary relief.' Under the act, corollary or secondary relief may involve interim orders for spousal maintenance and for custody and maintenance of children. A divorce judgment can be obtained before the corollary proceedings have been concluded, but only if both spouses agree; otherwise, the court may stay the final order of divorce until arrangements are completed. Custody is governed by the Divorce Act. The current principle for determining custody is the l?est interests of the child.' The Divorce Act touches on many other matters, including residency requirements, grounds, provisions for reconciliation, and involvement (no longer mandatory) of the Children's Lawyer. The act's provision for thirty days' notice of intention to move the child is designed to permit the non-custodial parent an opportunity to move for a variation of the custody order. In Canada as a whole, parents reported that they had a court order, or were in the process of obtaining one, in 48 per cent of the cases (Department of Justice Research Unit Child Support Team, 2000). The Divorce Act also governs support. Historically, the state has not always intervened in support matters. When it did not, support was part of a system of 'private law' that 'simply was not serving [custodial parents]' (Federal/Provincial/Territorial Family Law Commission, 1995, Appendix D-l). Awards tended to be small, and enforcement costs were high. Many custodial parents had to turn to social assistance. After the rate of marital breakdown in Canada soared in the 1970s and 1980s, 'governments felt the problem directly in their budgets' (1995, Appendix D-l).

Fathers and Divorce: Personal and Institutional Processes 43 A major amendment to the Divorce Act was on 1 May 1997, when the Federal Child Support Guidelines were introduced. These guidelines consist of a set of tables that specify appropriate support amounts. Considerations of income level, number of children and province or territory of residence factor into the calculation of the support dollar figure. The courts are required to abide by the guidelines, with very few exceptions. The guidelines are an attempt to diminish the conflict involved in establishing support orders, and to shorten the negotiating process. Simultaneously, the Income Tax Act was amended so as to render the payor of child support ineligible for an income tax deduction for the amount paid. This applies to all agreements negotiated or amended after 30 April 1997. Likewise, the parent receiving the child support payment is no longer required to declare as income the support dollars received. The Divorce Act does not provide for the division of property because the provinces (i.e., not the federal government) have jurisdiction over property. If a divorce application is accompanied by a request for court involvement in property division, the provincial laws for property division are applied, in tandem with federal divorce law. The formulae for dividing assets can be highly complex; they also vary from jurisdiction to jurisdiction. Even definitions of 'family assets' (i.e., assets subject to equal division) vary from province to province. For example, Ontario does not distinguish between family assets and non-family assets. Cochrane (1993) characterizes all provincial and territorial division schemes as attempts 'to divide equitably, if not equally, the value of all the assets acquired by the couple between the date of the marriage and the date of their separation or divorce/ He concludes that marriage is 'for all intents and purposes an economic partnership between a man and a woman/ not very different on its breakup from a business partnership (62). Provincial Family Law

Each province also has laws that address custody and access matters as well as spousal and child support. If a couple wants the court's help in its separation matters but is not seeking a divorce, then all the corollary relief matters under the Divorce Act can be handled under provincial family law, and federal legislation does not apply. The Ontario Children's Law Reform Act of 1980 provides for the determination of custody and access where federal legislation is not applicable (i.e., when

44 'Deadbeat Dads' assistance with property division is requested). Under this and the Divorce Act, wide judicial discretion is available. The provincial act, in general, harmonizes with the federal act with respect to custody and access. In Ontario, the Ontario Family Law Act of 1986 provides for property division and child and spousal support in cases of marriage breakdown and divorce. Marriage contracts, cohabitation arrangements, separation agreements, and the status of the family home are all covered by the act. Custody and Access Enforcement Enforcement of custody and access is a provincial matter and is available to custodial and non-custodial parents respectively. In practice, few mechanisms exist for access enforcement, and it rarely occurs. When access is denied, the only remedy available is the civil one of having the custodial parent found in contempt of court. The court must be satisfied that the denial is 'a willful interference with the noncustodial parent's entitlement to access'; also, 'the standard of proof required on a contempt hearing is higher than in normal civil proceedings' (Cochrane, 1993: 46). As in the case of support matters, the more flexible and cooperative the language of separation agreements is about access, the more difficult such agreements may be to enforce. When agreements use terms such as 'reasonable/ 'generous/ or 'liberal' access, 'it is next to impossible to obtain court enforcement of these vague expressions' (77). If the custodial parent is found in contempt, the court may impose either a fine or jail. In most instances, neither of these is imposed because of 'inappropriateness' (146). The police are reluctant to intervene in access difficulties, partly because a civil remedy is available. Custody enforcement becomes relevant when children are abducted by the non-custodial parent or are not returned following access periods. Interjurisdictional agreements exist within Canada, as well as between Canada and a host of other countries, to facilitate children's apprehension and their return to the custodial parent. Child Support Enforcement In contrast to access enforcement over the past fifteen years there has been increasing emphasis on establishing mechanisms for child support enforcement. In Ontario, the Family Support Plan Act of 1992

Fathers and Divorce: Personal and Institutional Processes 45 replaced the Support and Custody Orders Enforcement Act of 1985. The original legislation established the Office of Support and Custody Orders Enforcement (SCOE), which later became known as the Family Support Plan and is presently named the Office of Family Responsibility (OFR).8 This agency collects support payments pursuant to a federal or provincial court order (i.e., as part of a divorce or formal separation agreement). Even when an order has been issued by a federal judge, enforcement is a provincial court matter. The enforcement agency is not responsible for regular payments to the recipient; it will only forward payments once they have been received. There may be a substantial delay between the time a support order is issued and the time payments are actually received from the payor and disbursed to the recipient. Under this act, whenever the court issues a support order a support deduction order (SDO) is automatically issued. This is sent to the director of the enforcement agency. (Under certain conditions, SDOs may be issued for support orders made prior to the 1985 legislation.) The plan then initiates the garnishment of wages for payers who are salaried employees. Self-employed payers may submit postdated cheques to the plan annually. In Ontario, this process has been automatic and universal since 1992. Under the original legislation, the plan was an 'optin' one, and payments could be made by any payor directly to the agency. SDOs were issued only for payors in default. Current policy operates as if each father in default were deliberately not ever paying in spite of ability to pay. Most often, enforcement is executed through wage garnishment. In most jurisdictions there is a maximum that can be taken through garnishment. In Ontario the maximum is 50 per cent. The enforcement agencies have significant power to intervene in the lives of individuals, especially payors. The legislation empowers them to notify employers when an SDO (i.e., a garnishment arrangement) is made, and to demand certain types of information from employers on an ongoing basis. The agencies have access to many sources of information about payors in order to trace them when they are not forthcoming. Employers risk civil action if they shield a payer's income by not deducting according to the established terms (Cole and Vidal Ribas, 1995). The enforcement agency can compel an employer to make the deductions. Sometimes enforcement is carried out by seizure of property under a Writ of Execution or Warrant of Distress. The legislation provides for jail sentences, but these are rarely used. The enforcement agency is empowered to use information from federal monies to trace payors

46 'Deadbeat Dads' and to intercept federal monies such as income tax refunds and Canada Pension Plan payments. When the enforcement agency receives information that a debtor has an unreported income source, it is permitted to gain access to that source without notifying the debtor (Cole and Vidal Ribas, 1995). The Federal Orders and Agreements Enforcement Assistance Act of 1986 is complementary legislation that provides enforcement agencies with access to certain federal data banks to help them trace support payers in default. In 1992-3, additional funds were provided for a five-year period to help the provinces and territories improve their enforcement programs (Federal/Provincial/Territorial Family Law Commission, 1995). In some American and Canadian jurisdictions, support enforcement is privatized. Enforcement has been described as a 'growing industry' in the United States - one that has a proprietary interest in policy that favours active enforcement (K. Kulisek, Dept. of Justice, personal communication, 5 February 1996). British Columbia's Maintenance Enforcement Program has been privatized - except for the 'locate' function - since the child support enforcement program was launched in the late 1980s. In the late 1990s, Ontario conducted a one-year pilot project targeting parents who had not paid for three years; a second project is planned, this one aimed at parents more than six months in arrears. An unpublished study of the privatization of child support services found that under certain conditions, debt collection agencies are somewhat helpful for collecting past-due support; however, they do not solve the problem of non-compliance.9 The original title of the Ontario legislation contained the term 'support and custody enforcement.' So did the original name of the agency that administered it. The change in the agency's name to 'Office of Family Responsibility' signals a nominal shift away from the regime of enforcement, perhaps in response to an awareness that enforcement has proceeded without regard for the role of fathers as caretakers (J. Sturrick, Dept. of Justice, personal communication, 5 February 1996). The change also hints at a number of contradictions, however. First, there is a shift away from state responsibility for family wellbeing toward a reinforcement of the notion that families are private entities responsible for their own well-being. The elimination of any reference to custody (let alone access) as an area of concern reminds us of the state's interest in the economics of divorce. Even though legislation has toughened enforcement measures, the budget of Ontario's enforcement office has been reduced dramatically.

Fathers and Divorce: Personal and Institutional Processes

47

Since this study was conducted, the Family Support Plan Act has been replaced in its entirety by the Family Responsibility and Support Arrears Enforcement Act (FRSAE), enacted 31 January 1997. The language of this latest title suggests a renewed focus on enforcement, but only as it pertains to a specific group (i.e., those in arrears, as opposed to all payers of support). Generally speaking, this act is similar to the Family Support Plan Act, but its enforcement powers have been expanded. All support orders under the Family Support Plan Act now fall under the jurisdiction of this new act. Unless the support order is withdrawn from the FRSAE, payments go first to the director and then to the recipient. The support order has priority over the claims of any other creditor (including Revenue Canada). Various measures against defaulters are stipulated. These include suspension of a driver's licence, the placement of a lien against property, and the direct seizure of property. Property includes bank accounts, lottery winnings, and workers' compensation payments. In addition, the OFR's director has increased access to both public and confidential records of payers. Not everyone registered with the OFR is divorced: most support arrangements with a formal agreement are involved with the plan. With a caseload of over 170,000 (Ministry of the Attorney General, February 2001), the OFR is designed to process a large number of cases in as uniform a manner as possible. The plan has been described as a Volume agency' that is not designed to deal with 'customized' arrangements intended to meet the needs of individual families (Cole and Vidal-Ribas, 1995). As happens in many bureaucratic institutions, individuals are categorized. Other characteristics of a bureaucratized and understaffed regulatory agency are centralization, reliance on information systems, and interaction with electronic systems rather than with people. In fact, once government downsizing in the late 1990s reduced the number of OFR offices and personnel, centralization and automation increased substantially, and so did the dissatisfaction of both payors and recipients seeking service from the office. The OFR is driven by procedures. The result is a high degree of bureaucratization and documentation; also, those who use the office require advice from professionals such as lawyers and paralegals regarding how to navigate the system (Cochrane, 1993: 62; Cole and Vidal-Ribas, 1995). Some automatic procedures such as wage garnishment occupy a default position: they are not initiated by application; rather, they must be stopped once they are begun. Other procedures must be requested from either the OFR or the courts, and these often

48 'Deadbeat Dads' involve waiting periods and legal expenses. Because the entire system is so information dependent, notification must often be exchanged between the payor (or the payer's employer or lawyer) and the OFR, or the recipient and the OFR. Variations to a support order may be obtained by either party where there is evidence of a change in circumstances, but the test is stringent (Cole and Vidal-Ribas, 1995; Cochrane, 1993). It is also possible and often necessary - to obtain an interim support order (as also in the matter of custody) or an interim variation to an order. There is wide judicial discretion with respect to interim orders, and according to Vayda and Satterfield (1989) these interim orders are not closely inspected by the courts. The cost of seeking a variation to a court order for support is often prohibitive. As a result, non-custodial parents whose financial situation has been reduced 'usually prefer to fall in arrears, wait until their financial situation improves and then apply for a retroactive variation' (Federal/Provincial/Territorial Family Law Committee, 1995: Appendix D-2). Whichever party initiates a motion for variation of a support order, the time taken by the process can cause hardship. In an outlying provincial family court, the matter may be settled within a month. In General Division (or 'Superior') court, the same matter may take a year. Meanwhile, the custodial parent and child seeking an increase need more than they are receiving, or the payor who is legitimately unable to pay falls into the defaulter category. Often, both things happen. Alternative Trajectories through the System

The basic steps for any legal proceeding, including a contested divorce or an application for an order of support or custody, are as follows (Cochrane, 1993:44): 1 2 3 4 5 6 7

exchange of letters between lawyers, exchange of legal documents (called pleadings), discovery of each other's cases, motions (mini-trials on matters that come up from time to time), pretrial (settlement discussion before a trial), trial, and appeal (if necessary)

The exchange of letters and pleadings (steps 1 and 2) involves a 'barrage

Fathers and Divorce: Personal and Institutional Processes 49 of material/ the purpose of which is to 'narrow the controversy until the key issues are identified' (Cochrane, 1993: 45). Some 80 per cent of all family law cases are settled atpretrial (Vayda and Satterfield, 1989). Separation agreements are often negotiated by couples even when they do not plan to divorce. Often, a separation agreement precedes the divorce action. In addition, a couple - whether divorcing or separating - may undertake mediation with a lawyer, social worker, psychologist, or member of the clergy. Mediation may address financial and property matters (including support) and/or custody and access arrangements. In a cooperative context, these latter may be termed and treated as a 'postdivorce parenting plan.' The hope is that mediation will preclude adversarial negotiations, but this is not always the case. Mediation often follows a period of hostile dealings between the spouses and may be ordered by the court, as provided by the Children's Law Reform Act. Conciliation services attached to family courts are another option; yet another is private arbitration (i.e., outside the court system). Many parents are able to agree on custody and access arrangements. When the dispute cannot be resolved this easily, however, one or both parents may request a formal child-custody evaluation, or the court may order one. This is conducted by a mental health professional. More than one assessment of the family may occur, especially when the process has broken down or when the parties are dissatisfied with the results. It is no longer a requirement that the Children's Lawyer of Ontario (formerly known as the Office of the Official Guardian) be notified of every divorce; however, in a custody or access dispute where the best interests of the child are not clear, the court will ask it to conduct an assessment. The parents may arrive at a support arrangement by mutual agreement, with or without lawyers' or mediators' involvement. This agreement is filed with the court, which then automatically issues a Support Deduction Order (SDO). Once an SDO is issued, the support payor becomes engaged with a whole new set of procedures and institutional interactions. Because of the various alternatives at different points and the range of possible circumstances, there is no single trajectory that all couples/ families take through the system. By the time a father is involved in an enforcement process, he may have had many encounters with lawyers, courts, mediators, counsellors, and enforcement personnel, or he may have had limited experience with any of these. Each encounter is with institutional practices interpreted and enacted by institutional agents.

50 'Deadbeat Dads' The range of episodes or circumstances that usually lead to involvement with the divorce system, the professionals and institutions that represent the system, and the range of possible outcomes are shown in Figure 1.1. The complexity of the system and the frustrations encountered by those seeking its assistance are illustrated in the account of Art's separation experience (Figure 1.2). Art is a participant in this research; his situation is described in more detail in chapter 3. As one can see from the illustration, when the responses of professionals and the outcomes generated by their involvement are considered undesirable and/or unrealistic, the complications can become overwhelming. This represents the experience of only one of the research participants. There are, to be sure, any number of possible trajectories through the system; however, Art's experience is by no means atypical. Trends and Debates in Family Law Although divorce is a personal experience, it is also a social phenomenon that has public meanings (Riessman, 1990) and social implications. There are federal, provincial, and often religious laws that define just how spouses will disengage from each other. Their property, income, assets, and resources, and - above all - their children, are divided according to individual choice, negotiated options, and a host of legal, economic, and cultural constraints. The entire society and the state take an interest in how families are 'dis-organized' and reorganized (Glendon, 1981; Statistics Canada, 1983). This shady has unfolded amid a proliferating discourse about the reforms to Canadian family law that have been enacted in the past two-and-a-half decades. Attempts to identify competing ideologies, to address competing claims, and to identify links between ideology and practice have appeared in scholarly literature, the popular press, judicial decisions, and government-sponsored reports. The developments in Western family law over the past several decades have been dramatic, constituting what Glendon (1989) calls 'an unparalleled upheaval/ Contemporary family law reflects 'new ways of thinking, not only about marriage and family life, but also about law and government' (1-2). Glendon focuses on the 'persuasive and constitutive aspects' of law, which interact reflexively with ideas, feelings, and conduct (10). In other words, the law reflects how we expect things to be, and at the

Fathers and Divorce: Personal and Institutional Processes 51 Figure 1.1. Elements of the separation/divorce system. Items in boxes represent the elements involved in one father's experience with the divorce system (see Figure 1.2). Initiating event

Decision to separate

Motion to vary support

Institution/ profession Lawyer

Legal Aid

Outcome

Interim Support Order

Interim Custody Order

Mediator Order upheld

Motion to vary access Appeal

Support default

Access dispute

Support Deduction Order

Family Support Plan (Office of Family responsibility)

Enforcement

Court

Stay of Enforcement

Provincial Support / property dispute

Custody dispute

General Division

Assessor Official Guardian

Bankruptcy

Separation agreement Divorce

52 'Deadbeat Dads' Figure 1.2. Art's trajectory through the divorce system. Initiating event Decision to separate

Institution/profession

Custody and access dispute

Lawyers Court (Provincial)

Registration of court order

Outcome

Interim custody order Interim support order

Family Support Plan Enforcement order (Office of Family Responsibility)

Neither spouse satisfied with court outcome Art defaults on support —h Family Support Plan

Enforcement proceedings

Court (General Division) Wife in financial difficulty Support dispute continues

Legal Aid

Delays

Mediation

Mediation unsuccessful I

Court

Stay of Enforcement Order Support Order upheld, collected from Art's share of matrimonial home New court date

Couple out of funds (Legal Aid now unavailable to both) Art in financial dif

Return to court

File mixup

Lawyers dismissed

lares bankruptcy Frozen accounts support collection blocked New court date tponement —> ew date pending No agreement after eighteen months No support being paid

f v same time influences how we conceptualize our affairs and prescribes how we live them out. As divorce has become more available, attempts to counteract its negative economic and social effects have had mixed results. Glendon's shady of five Western countries concludes that 'no country has achieved a satisfactory resolution of the interrelated problems of spousal and child support, property division, and child custody' (197). The laws relating to divorce, custody, access, and support express the institutionalized conceptions of fathers and of mothers. The laws both reflect historical ideals and prescribe current behaviours. The changes in family laws in most American states have been characterized as reflecting the 'social goal of equal protection and equal responsibility for mothers and fathers' (Walters and Chapman, 1991: 88). The same goal is shared by the recent reforms in Canadian law. These trends in Canadian family law have generated controversy, especially over men's versus women's rights. Custody Determination The shift from the tender years principle to the best interests of the child principle reflects a trend toward 'gender neutrality' in the law. It recognizes that the tender years principle reinforced the sexist division of roles in society and in the family. It is also an attempt to place the needs of each individual child above any general principles of child development and above the rights of the individual parents. Supported by the principle that a child is usually better off maintaining contact with both parents, and that cooperative parenting is best for the child, the overall thrust is toward increased parental power sharing. This creates the potential for tension between parents' rights and children's needs. Increased sharing of child care and provisions for joint custody have important implications for child support as well. The argument is that when fathers share a lot of time with their children, their child care costs go up and the costs for the mother go down; it follows that in these circumstances, child support payments from the father to the mother should be reduced. Under the prevailing best interests doctrine, the primary caretaker is usually considered to be the parent who spends the most time with the child; this 'often penalizes fathers, especially fathers of young children' (Hetherington and Hagan, 1986: 134). This argument can be understood to support either the view that fathers are being 'disenfran-

54 'Deadbeat Dads' chised' by the courts (Walters and Chapman, 1991), or the view that inequalities underlying the economic differences between married men and women simply become more visible after separation. Feminist legal theorists have tried to counter the trend toward gender neutrality by arguing in favour of a primary caretaker principle as the determinant of custody assignment. This position opposes formal equality in family law because of the substantive inequalities that exist in power and responsibilities between men and women (Smart and Sevenhuijsen, 1989). The idea is that gender neutrality in the context of custody assignment is only valid if the parents have shared caregiving equally during the marriage. The reality is that structural conditions are conducive to one parent being home at least part of the time and to that parent being the mother. The gendered construction of parenting roles within the family is reinforced by the lack of affordable day care, the tendency in the labour market toward lower wages for women, parental leave structures that favour women as caregivers, and the norms around breastfeeding and children in the workplace. Because women are much more likely than men to be in low-paid employment situations, most mothers' wages are easier to give up than most fathers'. This leaves many women economically dependent and disadvantaged in terms of earning potential when separation occurs. Liberal feminists have called for equal work opportunities and rewards within the labour market, supported by equalized division of household and child care labour; in contrast, some radical feminists have advocated for the frank recognition of the woman's role as primary caregiver when custody is being determined. A final gender-related issue that has emerged around custody and access relates to the custodial parent's mobility rights. There has been controversy about whether a custodial parent who chooses to relocate for purposes that could arguably serve the child's interests (such as better wages, housing, and working conditions, or a stronger support network) may take the child with her, thereby interfering with the child's right to 'maximum contact' with the other parent and the other parent's right to contact with the child. Levels of Child Support These debates have focused on how child support levels should be established that are adequate for the child, fair to both parents in terms of their requirements and their ability to pay, and consistent across

Fathers and Divorce: Personal and Institutional Processes 55 jurisdictions. This issue was the subject of a Federal/Provincial/Territorial Family Law Committee study (1995). The law emphasizes the responsibility of both parents to support the child. In legislation and judicial decisions, primacy is given to child support over other concerns. Nevertheless, support default continues, and so does the poverty of custodial mothers and their children. The intransigence of the problem has led some authors to suggest that it is not realistic to expect that an income that once supported a single household will adequately support two (Glendon, 1981). The controversial Federal Child Support Guidelines, introduced in 1997, represent an attempt to establish a formula for fair and consistent levels of support across the country. It is still too early to know what the effects of the guidelines have been on support compliance; however, it can be said that generally, they have standardized support levels nationally and left less room for judicial discretion in determining the amount of support. The assumption is that by standardizing support levels, the guidelines have made it less necessary for couples to fight over the size of support payments. There is some concern that the 'forty percent rule,' which negates support in cases where the child resides at least 40 per cent of the time with the non-custodial parent, will encourage fathers to fight for shared custody so as to avoid paying support. Arendell (1995) claims that in the United States, more fathers are indeed looking to joint custody as a response to child support reforms, which provide for higher levels of awards and increased enforcement. The issue of child support has been exacerbated by the separation in law of child support from spousal support. As women's education levels and participation in the workforce have risen, the expectation that wives will become financially self-sufficient following divorce has supplanted the scenario of continuing dependence. This development also reflects the trend toward gender neutrality and the equalizing of rights and responsibilities. Enforcement

Since the mid-1980s, the response to support default has been state enforcement. Aggressive collection policies have been enacted recently in many jurisdictions; increasing powers of enforcement were introduced in 1992 under the Family Support Plan Act. Despite escalating enforcement measures, at the end of 1999 only 25 per cent of all payors in Ontario were fully compliant (defined as having no payments in arrears). When payors in arrears were added, the overall compliance

56 'Deadbeat Dads' rate was still only 60 per cent. Although the legislation is gender neutral in its language, the overwhelming majority of parents obliged to pay child and/or spousal support are fathers, and enforcement is most often exercised in relation to fathers. In the media, the term 'deadbeat dad' is now commonly used to refer to fathers in default. Thus, 'we have two trends between which there is substantial tension: the trend toward gender neutrality of child support and the trend toward more efficient pursuit of fathers who do not pay' (Walters and Chapman, 1991: 89). There are no matching mechanisms for enforcing visitation and access by non-custodial parents, the majority of whom are also fathers. Bill 124, which attempted to introduce such measures in Ontario in 1988, was championed by fathers' rights groups and opposed by women's groups. The Relative Merits and Dangers of Alternative Dispute Resolution (ADR)

There has been considerable debate about the merits of alternative dispute resolution, especially mediation, and especially with regard to women. The report of the Ontario Civil Justice Review (1995) strongly emphasized ADR in its proposals for revising the judicial system. Despite arguments in favour of mediation as a non-adversarial, empowering alternative to the legal system (Girdner, 1985; Irving and Benjamin, 1987), important questions have been raised about its potential risks for women (Boyd, 1989; Ricci, 1985). The main issue is whether mediation processes favour male interests and negotiating positions at the expense of women's rights. Some authors emphasize the experience of individual women, who may not have been accustomed to negotiating on an equal footing or who may have felt intimidated by an abusive or domineering partner. Mediation has been called a process that takes place 'in the shadow of the law/ and thereby potentially deprives women of the law's protection. There have been attempts (Landau, 1994, for example) to incorporate feminist concerns into evolving models of divorce mediation.10 The Role of Professionals as 'Experts'

Judges vary widely in their reliance on the opinions of assessors, especially when those assessors offer formal recommendations. The

Fathers and Divorce: Personal and Institutional Processes 57 question of custody assessors' authority was addressed in Custody and Access: A Discussion Paper, published by the Department of Justice in 1993. The relevant 'stakeholders' were invited to participate in reshaping custody and access policy. The report synthesized the material submitted in response to this invitation. Judges are the only people trained to exercise judicial authority; custody assessors are the only ones trained to deal systematically with information about family functioning and children's development. Training is offered to judges, but that training is said not to attract the very judges who are unsympathetic to a mental health approach. Another issue is whether clinical 'experts' in mental health and social work inadvertently contribute to the oppression of women. Feminist theorists worry about the emphasis that clinical practitioners place on emotional issues and psychosocial 'needs' - sometimes at the expense of the rights of women (Smart, 1989). Clinicians tend to favour the principle of maintaining the child's relationships with both parents, and so generally support the demand for an increase in shared parenting. As noted earlier, this can create problems in terms of power relations and financial support. Conclusion The social/structural conditions that have spawned dichotomous gender roles are gradually changing; as a result, the content of masculinity is receiving critical scrutiny. Power relations based on gender role stereotypes are being seriously challenged, and threaten the privileges that masculinity has traditionally entailed. As newer conceptions of masculinity devalue the traditional male gender role, the ambiguity and insecurity that accrue to male identity may well increase. This is especially problematic because the masculine stereotype emphasizes confidence, dominance, decisiveness, rationality, and aggressiveness. In the family domain, the functions of fatherhood, which at one time were delineated by the code of masculinity, have been undergoing change. The traditional family, which was founded on a division of labour, powers, and gender qualities, has evolved into something different (at least within the middle class). Fathers shifted from a central position of ownership and authority to a marginal but crucial role as providers, while mothers alone were assigned the role of nurturers. The dynamics of family life were increasingly shaped by modern economic realities and supported by paradigms that reinforced these

58 'Deadbeat Dads' patterns as 'only natural.' The socially constructed content of fatherhood became increasingly ambiguous and inconsistent, as did the content of masculinity itself. From a sociobiological or psychoanalytic perspective, the issue of why fathers distance themselves from children can be understood relatively easily. If active fathering is not considered central to one's identity or functioning as a man; if one's role as father is precisely to operate from the margins rather than from 'within'; if one's attachment to children is socially learned and mediated through the spousal relationship, then divorced fatherhood is completely consistent with distance from children. Many fathers actually lack the skills to parent children without the support of a cooperative woman. The phenomenon of father distancing becomes incomprehensible only if it is examined within the current - and still somewhat rarefied - construction of masculinity/fatherhood that emphasizes the importance of expressiveness, dependency needs, and attachment in men's lives. Only if the emergent paradigm of androgynous, nurturant fathers is accepted does the question of how divorced fathers can abandon caring behaviour become problematic. Even so, the structural conditions of fatherhood, in both 'intact' families and divorced ones, make it difficult for fathers to maintain a strong, positive paternal identity. The linking of paternal identity to masculine identity in the context of existing gender relations offers insight into what may happen to fathers when divorce separates the father-child relationship from the marital relationship. Masculine identity and paternal identity depend so heavily on feminine/spousal complementarity that both may founder when the wife/co-parent is no longer available. Moreover, with divorce, the normal rules of spousal and gender relations seem to change. In the North American laws of custody, access, and support, many men encounter a reversal of their social status and normal expectations of privilege. Whatever balance makes marriage and fatherhood desirable is apparently upset, and perceptions of unfairness and powerlessness - so inimical to masculine identity - elicit powerful psychological responses. These responses are affected by personality variables such as narcissistic vulnerability. They are often directed toward the ex-wife and toward the justice system (even the entire social system), which is perceived as favouring her interests as a woman over his as a man. Family separation and divorce is an important juncture where fathers are at risk of experiencing challenges to personal identity and/

Fathers and Divorce: Personal and Institutional Processes 59 or masculine privilege. The relationship with one's former spouse and children is redefined, and one's behaviour toward them is highly circumscribed. The separating parties may find that there are many demands on them, and that they have limited control over crucial decisions regarding their own and their children's future. Privacy may be lost in several areas. Finally, the law and the system reflect traditional gender roles and at the same time have tried to counter these roles through reform. The contradictions and tensions surrounding gender relations in society as a whole are manifest in the issues pertaining to family law and the divorce system.

2

The Study

The starting point for this research is our inability to account for the failure of so many divorced and separated fathers to support their children adequately. So far we have failed to find ways to engage the majority of separated fathers in behaviour that is congruent with what is expected of them by both the law and society as a whole. The research on which this book is based was inspired by this question: Why is it so? In this chapter I outline this study's conceptual framework and methodology. The conceptual framework has four elements: 1 The perspective of critical social theory and its role in uncovering the operation of power in social relations. 2 A historical view of the family as a social construction, including the role of the state and its institutions in the family. 3 The social construction of 'social problems/ divorce in particular. 4 The social construction of multiple identities through the social discourses that regulate social relations. The connective tissue in all this is poststructural theories of how modern power is exercised, how identities are produced in the process, and how individuals take up those identities. Applied to the subject at hand, the question becomes: What is the relationship between fathers' identity and the social institutions, discourses, and practices related to family breakups? I begin with the belief that we live in a world that is socially constructed (Berger and Luckman, 1966) - that 'the "obvious" and the "natural" are not given but produced in a specific society by the ways in

The Study 61 which that society talks and thinks about itself and its experience' (Belsey, 1980: 3). Furthermore, society does not talk or think about itself in unitary ways, but rather in multiple ways representing various perspectives on reality that reflect only partial understanding and inevitable biases. Social constructionists, as the proponents of this view describe themselves (Bash, 1995; Gergen, 1999), see 'particular social problems as the products of certain social constructions of reality, as resulting from a point of view that orients people to a particular perspective on society, as a conception, rather than a perception, of specific socially experienced or empirically observed conditions in society' (Bash, 1995: 56). Within this framework, the social problems of divorce and non-payment of support are also socially constructed. But how does a social problem get to be a problem? Moreover, assuming the postmodern/poststructural view that identities are formed within socially constructed realities, (Feathersone and Fawcett, 1993; Smith, 1987; Weedon, 1987; Lupton and Barclay, 1997), what is the relationship between identity and the discourses that construct social problems? In other words, how do individuals take up identity positions within socially constructed problems? The research was therefore aimed at developing an understanding of how fathers take up identity positions when they are separated from their children and obliged to pay support. An understanding was also sought of the role of social (including economic and legal) discourses in producing these identities. The Perspective of Critical Social Theory The discourses regarding families, separation, child support, and custody/access are multiple; they are also often ambiguous and even contradictory. I have sought a perspective that can expose the respective ideological frameworks of competing positions on these socially constructed problems. Bernardes (1987) has argued that the job of sociology is not neutral, but rather 'to make clear the nature and forms of social control' (679). This approach, called critical social research, has been described by Harvey (1990) as 'analysis of social processes, delving beneath ostensive and dominant conceptual frames, in order to reveal the underlying practices, their historical specificity and structural manifestations' (4). The present study falls within this tradition. The analysis is informed by the tradition of Foucault regarding the association of micropractices with the operation of modern power, with its focus on the creation of subjectivity through discursive prac-

62 'Deadbeat Dads' tices. This approach emphasizes the multiplicity of practices and discourses associated with divorce; it also examines the values and belief systems that influence the different sets of practices executed by the assorted professionals involved. The design of the research is also influenced by the work of Dorothy Smith, who indicates the need to examine the function of ideology in the 'relations of ruling' (1987: 3). The capacity of critical social theory to reveal how ideology functions in social control is relevant to this study because I have made assumptions about non-payment of support as a power issue. On the basis of my review of the literature and my own past practice and research (Mandell, 1995), I make the assumption that non-payment of support by non-custodial fathers is partly an expression of the subjective experience of disempowerment. These fathers may frame it as a strategy of resistance to the perceived combined power of state and former spouse. Thus, the issue of power in the divorce process and in families in general is integral to the question of how fathers position themselves vis-a-vis the support enforcement system. Discussion in the previous chapter indicated that neither the 'micro' nor the 'macro' perspective by itself can provide a satisfactory explanation. The issue involves the subjectivity of individuals and the dynamics of spousal and family interrelationships, but it also extends well beyond these. By taking the position of 'non-compliance' vis-a-vis the support enforcement system, many fathers place themselves in opposition not only to their former wives, but also to the state and its institutions. My question aims to discover what is going on between fathers and the state that needs to be better understood. It is important to sustain awareness of the subjectivity of the individuals involved; it is also necessary to develop a broader perspective in order to accomplish social criticism and change. This broader perspective must include the social, legal, and economic landscape for families; for this reason the state's role in structuring family relations is included in the research. In his examination of how 'family policy' debates accomplish the 'ideological structuring of personal relationships,' Bernardes (1987: 687) makes the connection between the family as simultaneously private and public, and how the ideologies that influence family policy shape family relations in unrecognized ways. Although he focuses more on family relations than on 'subjectivities' per se, Bernardes explains how public discourses about families produce in individuals notions about family as a social category, and about themselves as family members.

The Study 63 This organic relationship between social discourses about families and the subjectivities adopted by family members (specifically, fathers) is the focus of attention in this research. The 'structures' and how the process of 'negotiating' those structures during separation/divorce exposes fathers to particular discourses and hence to particular identities are matters to be understood. Social Construction of Families and the Role of the State in the Family Families do not exist exclusively at the level of private emotions and interpersonal dynamics; they evolve within, and reflect, the social relations of gender, power, and economics. Challenges and changes within social relations are necessarily felt within the family as well. The Western family has been seen as in a state of continuous flux; it is 'the product of human history, its evolutions and revolutions' (Gies and Gies, 1989: 3). One striking change is the fact that the 'residential and biological unit' known as the 'nuclear family' (the grouping of mother, father, and children) had no name in any European language prior to the eighteenth century. Earlier terms for 'family' referred to all household members, including other relatives and unrelated persons such as servants and slaves (4). Moreover, the 'egalitarian' family, in which husband and wife share authority and in which democracy extends in some degree to the children, is a modern invention. In the past, fathers had unquestioned authority - sometimes even the power of life and death. Wealthy families tended to be more authoritarian, poor ones, in which the economic contributions of the wife were indispensable, less so (11). The functions of the family have also changed. The functions of the modern family are normally limited to 'socialization of the child' and 'channeling of adult sexual and emotional needs.' The premodern family did much more: It 'functioned as a defense organization, a political unit, a school, a judicial system, a church, and a factory. Over the centuries these functions have been surrendered one by one to the great external institutions of modern society, the State, the Church, and industry' (7). This shifting of boundaries among the family, the state, and social institutions (i.e., between the private and the public) has been studied by Donzelot in The Policing of Families (1979). Following Foucault, Donzelot is especially interested in the role of social discourses in the mod-

64 'Deadbeat Dads' ernization of the family. He explores the changes in discourses through which 'the family has changed from being a pillar of society to being the place where society constantly threatens to come unglued' (219). The transformation of the family was related to historical developments in Western Europe in the late nineteenth century that reduced the social importance of the family (e.g., divorce legislation, the entry of women into the labour market, and attempts to establish birth control). For the socially privileged, that importance lay in the family's 'juridical power' - that is, the family's role as the 'best support for the vertical relations of dependence and prestige' (178). The struggle over the autonomy of the family, and of individuals in relation to each other and the state, continues in societies like ours, in which there is constant tension between the values of individual freedom and those of societal responsibility for individuals. That struggle is highlighted during a marital separation, when the modern couple is free to dissolve its emotional and sexual ties but is regulated when it comes to the disposition of property, assets, and children. Administrative Practices of Divorce and the Family In her history of family law in the United States and four European countries, both Catholic and non-Catholic, legal scholar Mary Ann Glendon (1989) found that 'a historic shift in the relationship of the state to the family has taken place. Regulation has been withdrawn where it once was taken for granted, and intensified where until recently it had been unknown. For the most part, these developments do not appear to have taken place in conscious furtherance of any coherent set of objectives.' Focusing on the relationship between specific changes in the law and prevailing social behaviour, Glendon (1989) concludes that the 'principal converging tendencies' in family life had been in progress prior to the changing of laws; the many changes in legislation, beginning in the 1960s, 'merely formalized and systematized transforming trends that had long been diffuse and partially realized in each country's law' (2). Glendon describes the overall direction of changes as characterized 'by a progressive withdrawal of official regulation of marriage formation, dissolution, and the conduct of family life on the one hand, and by increased regulation of the economic and childrelated consequences of formal or informal cohabitation on the other. At the same time, the rise of modern administrative states has brought

The Study 65 about a marked increase in the degree and types of bureaucratic control to which families and their members are subject' (2). The extension of state control into the 'economic and child-related consequences' of divorce is especially relevant here. State withdrawal from some aspects of family life and increased regulation of others creates ambiguities, tensions, and contradictions that are germane to the issues of custody and support. The conception of separation/divorce and its aftermath as regulated social relations helps us situate the experience as a nexus in which the private is made public and the public, in turn, shapes the private experience. This is the thesis of Riessman's important study (1990) of individuals' experience of family breakup in the context of the public processing of it. Thinking about how the state regulates family matters pertaining to marriage and separation is tied to broader issues about how the relationship between the state ('the public') and the family ('the private') is constructed and how the family itself is viewed in a social and economic context. Parton (1991) outlines Foucault's analysis of the emergence, in the late nineteenth century, of a new set of linked discourses about the family. This resulted in a new site of activity and a new conceptual space - the 'social' - being opened up that had not existed before. The social developed as a hybrid in the space between the private and public spheres and produced new relations between the law, administration, medicine, the school, and the family (11). The emergence of the social was a response to the problem of balancing concern for the rights of individual children with the liberal approach of noninterference with families' autonomy (1991: 12). Foucault's analysis of how macro structures shape individual experience through multiple discursive practices seems applicable to the processes governing divorce, custody, and child support: Foucault's primary objective was to provide a critique of the way modern societies control and discipline their populations by sanctioning the knowledge-claims and practices of the new human sciences ... They instituted new regimes of power exercised through disciplinary mechanisms and the stipulation of norms for human behaviour ... No longer are the crucial decisions taken in the courtroom according to the criteria of judicial rights, but in the hospital, the clinic or the welfare office according to criteria of 'normalisation.' Even when decisions are taken in the courtroom, these are increasingly colonised by the 'psy' complex and the criteria of 'normalisation.' (Parton, 1991: 5-6)

66 'Deadbeat Dads' Catherine Foote undertook a Foucauldian analysis of non-payment of child support (1986). Her objective was to reconceptualize the phenomenon of spousal and child support 'as an example of the operation of power in our society' (76). Her conclusion, based on an analysis of the practices related to support, custody, and enforcement, was that laws, policies, and services related to divorce produce new categories of people: [A] separated spouse, a divorce/e, a dependent child, an independent or a dependent former spouse, a maintenance defaulter, or a 'divorce cheat' [are created] as a differentiated type of individual. Such categories are then available for detection, monitoring, intervention, and control because they are identifiable, distinguishable, accessible, and needy or culpable. Differentiation produces the potential for information, while this knowledge so-gathered sustains and builds science and professions. (77)

In sum, 'current responses to the phenomenon of spousal and child support facilitate surveillance, normalization, politicization, and governmentalization, in Foucault's sense of those terms' (78) in such a way that spousal and child support have become a 'field for the operation of power' by the state (79). Foote's understanding of the productive function of power in the area of child and spousal support leads her to conclude that it is unhelpful to think of defaulting on support payments 'as a failing of individuals or of the enforcement system which can be cured.' Rather, from a Foucauldian perspective, it can be thought of as a point of resistance to power, as a struggle against the proliferation of resistance to power, as a struggle against the proliferation of monitoring and control. Because the operation of power always evokes a corresponding antagonism, stopping defaults may be impossible. Instead, studying this particular niche for resistance should teach something about how intervention and control are working in our society. Defaulting may locate and reveal the nature of power as much as it demonstrates the failure of defaulters or of those who pursue them. (80)

Foote's conceptualization of non-support as resistance is crucial to an understanding of how attempts to bring about change in support patterns have failed; however, it does not explain why many fathers do pay support, or why so many pay partially. Different fathers behave in

The Study 67 very different ways for often different reasons. The obvious question: Why do individual fathers respond in varied ways to the expectations society places on them with respect to their children's economic wellbeing? The subjectivity of individuals, shifting under the circumstances and discourses of separation, needs to be included in the analysis. The identity of father is problematic in modern Western society, both within and outside of the 'intact' nuclear family. My interest is in building on Foote's insights into the nature of power in the enforcement process by examining how competing discourses about fathering, families, and the family's relationship to the state produce various subjectivities in separated fathers without custody. A range of subjective positions means a range of different relationships between fathers and the state. Discourse and Subjectivity The emphasis in poststructural analysis on how individuals take up identities within socially constructed realities calls for some elaboration of (a) the concepts of discourse and subjectivity, (b) the relevance of these concepts to the construction of the family and of the father, and (c) how fathers take up identities within the socially constructed reality of family separation. Discourses are seen as the means by which ideological positions are transmitted to individuals, as 'a domain of language-use, a particular way of talking (and writing and thinking) in which ideology is "inscribed"' (Belsey, 1980: 5). Discourses in Smith's usage are 'those forms of communication and interrelation that are mediated by documents - journals, magazines, newspapers, books, television, movies, etc.' (1984: 63). Discourse in this sense has a regulatory function. Laws, policies, and institutional procedures are also forms of public discourse. Subjectivity The concept of subjectivity signals a socially formed identity, a product of the interaction between the individual and social discourse. Henriques and colleagues (1984) define subjectivity as referring to 'individuality and self-awareness - the condition of being a subject.' They qualify this, however, by adding that 'subjects are dynamic and multiple, always positioned in relation to particular discourses and practices

68 'Deadbeat Dads' and produced by these - the condition of being subject' (3). The authors link this understanding of subjectivity with the potential for 'a different politics of transformation' (1). They argue against 'the opposition of individual and society and therefore of individual change and social change' (2). In a similar vein, Valverde (1991) argues that an understanding of social subjectivity cannot be adequately achieved 'by portraying it as composed of an internalized ruling ideology side by side with an impulse to resist.' Rather, the interest of critical social theory lies in understanding how social subjectivity is shaped through the struggles of competing discourses (176, citing Stuart Hall). Valverde stresses the need to analyse the organization of social subjectivity 'through structures and discourses of domination' as well as through 'counter discourses and subversive actions/ To this end, 'one has to consider the potential usefulness of poststructuralist theories of subjectivity' (182). The advantage of poststructuralism is expressed as the view that subjectivity is never singular... Rather, it is always fragmented and always in flux. The fragmentation is not due simply to the co-existence of domination and resistance, but also to the simultaneous presence of a number of distinct discourses converging on a particular social subject with varying degrees of effectivity' (182). According to Hollway (1984), coexisting discourses may create contradictions that an individual must somehow negotiate or resolve. 'Discourses make available positions for subjects to take up. These positions are in relation to other people' (236). What is meant by the concept of identity being 'offered' or 'made available' to individuals? How does this work? Weedon (1987) explains Althusser's notion of the 'interpellation of individuals as subjects.' This is described as a 'hailing' function that 'recruits' subjects among the individuals or 'transforms' the individuals into subjects (30). Weedon adds that this process of interpellation 'relies on a structure of recognition by the individual of herself as the subject of ideology' (30). This suggests a key question: How is it that so many fathers take on the publicly defined behaviour of 'deadbeats/ even as they express rejection of the deadbeat identity? Construction of Social Problems '[A] social problem exists when: (1) a group of people recognize or regard something as wrong; (2) they are concerned about it; and

The Study 69 (3) they urge or take steps to correct it' (Goode and Ben-Yehuda, 1994: 88). This conceptualization of the social construction of social problems seems overly simplistic, implying as it does that only one group will be concerned or seeking solutions at a given moment. The competing views, concerns, and solutions that are much more typical of the social world suggest instead that there is a political element to the privileging of one group's views, concerns, and solutions over another's. The division noted in the previous chapter between the micro and macro perspectives in divorce literature and especially in child support literature is consistent with Edelman's explanation of how social problems are constructed through competing discourses as 'reinforcements of ideologies' (1988: 13). Edelman's work on the political dimensions of constructed social problems shows how the dominant discourse defining a 'social problem' at any historical moment is actually the victory of one interest over a number of discourses representing competing interests. Relying on Foucault's analysis of 'changes in discourse that constitute problems' such as madness, crime and sexuality, Edelman theorizes about how problems may disappear from common discourse as though they had been solved, or may be discussed in 'changed legal, social or political terms as though they were different problems.' Thus, non-problems or inevitabilities 'may come to be seen as problems,' while damaging conditions may not be defined as political issues at all (12). Edelman (1988) explores the theoretical link between constructed social problems and subjectivity. As reinforcers of ideologies, social problems 'signify who are virtuous and useful and who are dangerous or inadequate, which actions will be rewarded and which penalized. They constitute people as subjects ... They create beliefs about the relative importance of events and objects. They are critical in determining who exercise authority and who accept it. They construct areas of immunity from concern ... They define the contours of the social world, not in the same way for everyone' (13). The discourse of social problems thus defined tends to emphasize certain troubles and downplay benefits, in accordance with the dominant interest or ideology. The possibility that 'benefits' may be outcomes of the problem tends to be concealed (14). The political effect of this is that conflict among social groups may be muted, even while the impression is given that the public is concerned about the people being victimized by the situation. Tn these subtle ways language forms help moderate the intensity of social conflict' (14). Edelman concludes that

70 'Deadbeat Dads' 'the language is clearly vital to a political maneuver and to the construction of subjectivity' (15). Examples of this are the shift in the divorce legislation to gender-neutral language, and the media's recent switch from the term 'deadbeat dads' to 'deadbeat parents/ In both instances, gender-neutral discourse is meant to reflect gender equality and to repudiate the gendered division of roles. This masks several realities, however. First, it denies the social fact that gender divisions in the family and the market continue. Second, it ignores the actuality that the problem of non-payment is in fact a gendered one. Third, it distracts us from the category deadbeat by focusing on dad as the problematic label. Finally, though it may 'mute' the conflict between feminist and men's rights positions around this particular issue, it does so by reconstructing the problem rather than by contributing to its solution. Edelman's analysis (1988) of how the 'right' and 'wrong' sides of any problem are socially constructed is instructive when we come to examining the debates about child and spousal support: To evoke a problem's origin is to assign blame and praise ... Each origin reduces the issue to a particular perspective and minimizes or eliminates others. Each reflects an ideology and rationalizes a course of action. A particular explanation of a persisting problem is likely to strike a large part of the public as correct for a fairly long period if it reflects and reinforces the dominant ideology of that era (17).

This analysis helps us interpret the history of child support policies and their analyses; it also accounts for the periods when the problem was completely ignored, or not acknowledged in public discourse as a problem. It also may explain why the problem is sometimes perceived as a sign of moral lassitude, or understood as one of psychological inadequacy or economic difficulty, or identified as a structural inevitability (Griswold, 1993). Rather than replacing one another, these discourses coexist, with their dominance shifting according to various factors, which Edelman analyzes. These shifts are evident in popular literature, in social scientific texts, and on television. As construction of the problem shifts, the preferred solutions change as well, and so do the leading 'authorities' on the problem. Necessarily, then, explanations for persistent social problems encounter contradictory responses - that is, both acceptance and rejection. Such responses 'intensify polarization and so maintain the sup-

The Study 71 port of advocates on both sides' (18). Also, the language of socially constructed problems serves to rationalize the vesting of authority 'in people who claim some kind of competence.' How the problem is defined 'generates authority, status, profits, and financial support while denying these benefits to competing claimants' (20). In the field of divorce, the players within this framework are easy to identify: lawyers, mediators, judges, enforcers, assessors, social workers, policymakers, and therapists vie with one another for recognition as experts with the best solutions. Finally, Edelman describes how new laws and other public actions what he terms 'gestures' - are taken in order to foster the belief that a problem has been solved, or that progress is being made toward a solution, even though this result is highly unlikely (24). He argues that efforts to solve problems are 'counterproductive' if they create 'the illusion of solving the problem, thereby permitting others to not address it, and they may produce subjectivities and conditions which support the exercise and the tolerance of the problem on all sides' (26-7). Thus, problems may be constructed as negations of other problems or as diversions from other problems. Not surprisingly, divorce is on Edelman's list of problems that have been subject to this strategy. It is also possible to see the problem of child support in this light. Worrying about enforcing fathers' payments distracts us from the structural issues involved. These include the gendered division of labour (which is inherently unequal and leaves women dependent on the money men earn in order to raise their children), the 'public' (state) versus 'private' responsibility for the welfare of women and children, and the future of the patriarchal family as the primary social unit. Maintaining the Complexity of Multiple Discourses and Multiple Subjectivities To bridge the gap between the private/individual and the public/ state, we must erect a theoretical framework that will help explain the interaction between the two realms as a dynamic relationship, rather than a static or deterministic one. The study of how fathers' subjectivity interacts with social institutions and processes is complicated by the fact that each of these domains is itself complex. There is no archetypical separated father who will stand for all fathers in this category. There are many different kinds of fathers, separated or otherwise, and they all feel, think, and behave differently from one another. They can-

72 'Deadbeat Dads' not simply be divided into caring and uncaring within a matrix of behaviours; rather, they seem to fall somewhere along a continuum between caring and uncaring. The purpose here is to develop an understanding of separated fathers that leaves room for the many kinds of fathers we find in the real world. Likewise, in the social realm there are multiple influences on families; we cannot point to any unambiguous set of factors that determine family life. We will have to consider both fathers' multiple identities (socially constructed meanings of fathering that individuals take up or reject) and the multiple discourses and practices that contribute to producing those identities. Weedon (1987) offers an example of all this. The participants in a miners' strike were positioned in multiple, conflicting subjective locations by the competing interests that defined the strike and the motivations involved in it. Thus, 'the miners were simultaneously criminal thugs and ordinary decent men ... the police were both upholders of the law and agents of class interest' (21-2). This example is well suited for helping us understand how fathers seen as irresponsible 'bad guys' by the system can manage to see themselves as righteous Victims,' how lawyers for the province of Ontario can be 'the guys in the white hats' as well as 'intrusive' and ineffectual bureaucrats, and how judges can be constructed simultaneously as incompetents, 'problem solvers/ and 'unprincipled.' Weedon (1987) notes that 'the need to rescue a coherent subjectivity from this battle over the meaning of the strike led to a hardening of positions between striking and working miners, the police and the politicians which precluded any shift in power relations, through the realignment of interests' (22). Similarly, the polarization I have referred to between feminist and fathers' rights positions on child and spousal support seems to have made it difficult to develop policy that can bring about social change for the ultimate benefit of children. Opening Up Possibilities for Change As a social worker, it is important to me that such a critical approach include the potential to contribute to constructive social change for families. It seems clear that some possibilities have inevitably been foreclosed by the polarization between micro and macro analyses, and between feminist and fathers' rights positions. I am concerned that any changes in policy or practices should be certain to benefit those who experience oppression. Other critical social researchers have placed similar demands on

The Study 73 their theoretical frameworks. In their work on feminism and the sexual abuse of children, Featherstone and Fawcett (1993) express their desire to 'open up possibilities' that tend to be foreclosed in the feminist literature on abuse. Their review finds 'an unhealthy polarization between explanations which focus on the structural and those which look at the individual'; furthermore, there needs to be a recognition 'that explanations can be on a number of levels' without being mutually exclusive. They cite Goldner and colleagues: To say that violence, domination, subordination and victimization are psychological does not mean that they are not also material, moral or legal' (1990: 345, in Featherstone and Fawcett, 1993: 8). They also cite Clegg's complaint (1994) about the 'unhelpful' tendency of feminist authors to 'privilege' explanations that rely on 'notions of patriarchal power' while 'suppressing' psychological ones: 'The underlying hypothesis of all men benefitting by controlling all women belies the fact that men appear extraordinarily flexible in their control strategies, and patriarchy theory suggests no independent dynamic to explain why those changes take place' (36) (in Featherstone and Fawcett, 1993). Weedon's work (1987) on feminism and poststructuralism emphasizes the usefulness of certain poststructural theories for an 'analysis of patriarchal power relations which enables the development of active strategies for change' (13). She argues for 'the appropriateness of poststructuralism to feminist concerns, not as the answer to all feminist questions but as a way of conceptualizing the relationship between language, social institutions and individual consciousness which focuses on how power is exercised and on the possibilities of change' (19). Weedon explains that poststructural theory conceptualizes subjectivity 'as a site of disunity and conflict, central to the process of political change and to preserving the status quo' (21). Her emphasis on change as the desired outcome of theoretical analysis is appealing for my purposes. The poststructural approaches favoured by Valverde, Weedon, Hollway, and Henriques and colleagues lend themselves to an understanding of how social problems are social constructions, and of how identities (or subjectivities) are formed within those constructions. Such an approach permits us to reach beyond the split between the individual and the social toward an analysis of how the individual is socially formed and, in turn, forms the social. It enables us to move 'away from analyses which set up binary oppositions such as men versus women, state versus the family, innocent versus guilty, powerful versus powerless' (Featherstone and Fawcett, 1993:11).

74 'Deadbeat Dads' The use these authors make of combined postmodern and feminist approaches to get beyond the dichotomy of micro and macro and to understand the complex relationships between them suits the theoretical framework that I have adopted for this book. Their discussion of multiple, changing subjectivities and strategies related to power and control issues between men and women is especially helpful in examining the contradictions around power and control that are central to the question of postseparation relations. The Research Questions A strategy of enforcement has not solved the problem of widespread poverty among children of separation; nor has imposing the identity of 'deadbeat' or "bad guy' on fathers succeeded in engaging their cooperation. My interest is in understanding why this is so. At the heart of this research is the issue of social change. The fundamental research question is this: How does the subjectivity of non-custodial fathers with support obligations reflect systemic conflict around what it means to be a father, and how is that conflict played out between fathers and institutions in the separation/divorce process? In order to get at this, we need to understand what identities are made available to fathers and how they are made available. We need to learn something about the different ways fathers take up or reject these identities within separated families. That is, how do they represent themselves as fathers and as men, and how do they deal with the representations of themselves reflected back at them by the system? In what ways are their representations of themselves congruent with those of the system, and in what ways are they in conflict with that system? What can we learn from this that might help us develop a more constructive approach to the question of postseparation/postdivorce poverty for children and mothers? Methodology and Rationale The study was conducted in Ontario in 1995. At this time the enforcement agency was still commonly known as the Office of Custody and Support Enforcement (SCOE). (For the purposes of clarity and consistency, I will refer to that agency as 'the Plan' - a name often assigned to it by lawyers, judges, and agency personnel. I will not use the newer name, 'Office of Family Responsibility/ after the Family Support Plan

The Study 75 Act of 1992, since it was invented after the study was completed.) At the time of the study, the SCOEs' offices had not yet been closed and the Harris government had not yet radically downsized the agency. Also, more aggressive enforcement measures were being introduced as the Department of Justice tried to respond in small ways to complaints from fathers' rights groups about being treated badly. This study of separated fathers' subjectivity in the context of systemic discourses and their institutional operationalization required me to consider a number of sets of data: a sample of separated and divorced fathers without custody who had experienced difficulties related to support; a sample of texts pertaining to relevant law and policy; a sample of institutional interpreters (or activators) of those texts; and a selection of sites where policy was respectively being developed, interpreted, and 'activated.' The methods applied were face-to-face intensive interviews, documentary analysis, and direct observation. According to Strauss and Corbin (1998: 11), 'Research that attempts to understand the meaning or nature of experience of persons with problems such as chronic illness, addiction, divorce, and the act of "coming out" lends itself to getting out into the field and finding out what people are doing and thinking.' They are referring to a qualitative approach to research - a methodology that they and many other authors have elaborated on in recent years. Qualitative research asks 'how and 'what' questions (Cresswell, 1997). Qualitative methods are suited to generating or constructing theory (as opposed to 'proving' it), to grounding theory development in the lived experience of social actors, to unravelling complex, recursive processes, and to bridging research, theory, and practice (Goetz and LeCompte, 1984, Dawson, Klass, Guy, and Edgley, 1991; Moon, Dillon, and Sprenkle, 1990; Smith, 1984; Van Manen, 1990). Finally, qualitative research 'emphasizes social context, multiple perspectives, complexity, individual differences, circular causality, recursion, and holism' (Moon, Dillon and Sprenkle, 1990: 364); all of these are elements of this study's underlying conceptual framework. Gergen (1999) refers to the 'qualitative explosion' phenomenon (95) that has accompanied the growing interest in social constructionism as an alternative to the empiricist tradition. Qualitative sampling is done purposively, rather than randomly as in quantitative research, and focuses on collecting data from the sources most likely to provide relevant information (Wright and McKeever, 2000). Data collection and analysis proceed interactively rather than sequentially; the analysis is generally based on inductive

76 'Deadbeat Dads' methods. The grounded theory method of analysis relies on techniques of open coding, which lead to the development of categories and subcategories. Categories represent phenomena that are identified when coding reveals 'repeated patterns of happenings, events, or actions/ interactions that represent what people do or say, alone or together, in response to the problems and situations in which they find themselves' (Strauss and Corbin, 1988: 131). This is followed by axial coding, whereby categories are related to their subcategories at a conceptual level (Strauss and Corbin, 1998). A basic theoretical paradigm is then built. One influence on the methodology for this research is Smith's approach to the study of social relations as they are organized by public discourses. Although Smith's interest lies in exploring the 'relations of ruling' from the standpoint of women, the assumptions underlying her methodology suggest its applicability to this research: 'The strategy of attending to social processes as the ongoing activities of actual people can be extended to phenomena which have formerly been approached as subjective or as cultural phenomena, i.e., as socially given forms of subjectivity. Discourse and ideology can be investigated as actual social relations ongoingly organized in and by the activities of actual people' (1990:160).1 Investigation of these 'organizing practices' involves making 'documents or texts visible as constituents of social relations' (Smith, 1984: 59). Smith's model was less helpful, however, with regard to the original, practice-rooted motivation for the research - that is, when it came to achieving a detailed understanding of the fathers' subjectivity from their own perspective. In designing the research, I therefore needed to study the lived experience' of fathers and at the same time make the connections between their own subjective positions and broader social discourses. The study was designed with two stages: first, to establish the fathers' experiences as a point of entry into the textual discourses that organize the social relations of separated families and institutions I call the divorce system- and second, to trace the mediation of textual discourses through institutional actors who interpret or 'activate' the texts and interface with individual fathers as representatives of the system. Gathering the Data The specific multiple methods were determined by three requirements: First, the fathers' perspectives needed to be known in order to

The Study 77 understand which identity positions they had taken up and which they had rejected. Second, the identity positions in the discourses of the law and public policy needed to be uncovered. Third, the ways these discourses were mediated by institutional actors needed to be understood. Accordingly, multiple sets of data were collected and analyzed. These included a sample of separated fathers, a sample of institutional informants, a documentary (or textual) sample, and direct observation at a number of sites. The selection of participants, documentary samples, and sites of observation was consistent with the characterization of qualitative, 'criterion-based' selection techniques as 'appropriate for research designs that focus on generalization to theory, rather than on generalization to populations' (Moon, Dillon and Sprenkle, 1990: 360). The Fathers

Initially, the plan had been to interview only non-custodial fathers who were not paying court-ordered or agreed-upon support, or who were in arrears. Two developments led me to broaden the approach. First, during my meeting with personnel at the Department of Justice, Ottawa, one of the policy researchers asked: 'Does anyone know what motivates the ones who do pay?' An understanding of the subjectivity of fathers who are exposed to difficulties with the system yet continue to pay regular child support is an important potential source of insight. Second, three fathers who did not fit the original criterion regarding arrears status were identified by different referral sources as subjects who could make important contributions to the research. The second criterion was therefore changed to include fathers who had experienced any kind of difficulty with child support payments or with the support enforcement system. Ultimately, a sample of seven fathers was selected through referrals from several sources in the community, who included mediators and lawyers from both the private and the public sector, as well as workers at a family service agency. A two to three hour interview was conducted with each father selected for the study. Every effort was made to allow each participant to tell his story in his own way in order to preserve as much as possible the organization he brought to his experience. All interviews were taped, and extensive field notes were taken during and following the interview.

78 'Deadbeat Dads' The Institutional Informants A purposive sample of institutional informants included representatives of the major institutions associated with support determination and enforcement. These included the judiciary, community lawyers, mediators, and the enforcement agency known at the time as the Family Support Plan (FSP). Interviews with informants were two to three hours long, with one exception: a lawyer, whose interview lasted fortyfive minutes. The Documents or Texts Recalling Smith's use of the term discourse ('those forms of communication and interrelation that are mediated by documents' whose 'ideological processes serve to co-ordinate sites of the ruling apparatus coming under different jurisdictions' - 1984: 63) and her formulation of the purpose of critical social research using analysis of discourses ('making documents or texts visible as constituents of social relations'), I selected a purposive sample of texts to represent the range of texts that constitute the social relations of marital separation and divorce. The sample, selected in consultation with a family law expert from the Office of the Attorney General, a faculty member of the University of Toronto Law School, and a family mediator, comprised the following materials: • The legislation pertaining to support, enforcement, custody, and access. • Mainstream legal textbooks that interpret case law for the purpose of educating lawyers and judges. • Publications from the Family Support Plan articulating policy and procedures regarding support payment and enforcement. These are directed - in different versions - at a range of target groups, including payers, recipients, lawyers, and employers. • The report of an intergovernmental committee mandated to study child support in Canada. Observation The following sources of observed data were used: • Fathers and institutional actors in court. This involved a day in fam-

The Study 79 ily court attending default hearings, including negotiations among various interested parties prior to entering the courtroom. • FSP offices. This involved an impromptu tour of a regional office on the day that interviews were conducted there. • Institutional actors developing legislation and policy. A meeting was arranged with personnel from the Department of Justice who research, analyze, and develop policy pertaining to child support. • Attendance at an educational program for family law lawyers. Analysis The transcribed interviews with the fathers were subjected to several rounds of qualitative analysis, including QSR NUD.IST (Non-numerical Unstructured Data Indexing Searching and Theorizing).2 This led to the conceptualization of the fathers' subjectivity along four main lines of subjectivity - self as father, as husband, as citizen, and as victim. The next step was to search for evidence of discourses in the institutional informants' interviews and in the legal/policy texts that related to these areas of subjectivity. In this way, each of the four areas of subjectivity was linked to discourses found in the institutional informants' interviews and in the legal texts, and the connection between the subjective and the discursive dimensions was thereby demonstrated. The observation of default proceedings in the courthouse was used in several ways. Exposure to details such as the absence of amenities in the courthouse, the large number of cases on the docket, and the informality in the dress and demeanour of individuals appearing before the court (in contrast to the highly formal behaviour of legal personnel) provided a first-hand grounding in the family court experience. These observed events and conditions were used to generate questions to ask the institutional agents at the site. All of this was extremely helpful for gaining insights into how the system works and what some of the issues are from an institutional perspective. The visit to the FSP offices served a similar purpose, except that no fathers were present while I was there. The bullet-proof glass separating clients from front-line staff, the recorded greeting on the telephone, the size and activity of the mailroom, and other details gave added meaning to the information gathered from the FSP administrator and other informants. The direct observations in the courthouse and in the FSP regional office were generally very consistent with the data gathered from the fathers and from the institutional informants. This helped validate the interview data.

80 'Deadbeat Dads' Attendance at the educational program for family law lawyers provided information and helped validate the discursive analysis. Participation in the meeting with Justice Department staff was useful in a number of fundamental ways. Aside from the informative content, my encounter with a highly intelligent, knowledgeable and open-minded group of individuals ensured that I could not slip into simplistic notions of government as bad, ignorant, or insensitive. It also reinforced my starting position that institutions are made up of individual actors whose subjectivity cannot be delinked from their professional selves. I was also able to discern some of the political pressures involved - although not always clearly acknowledged - in the policy directions taken. Limitations of the Study The researcher's impact on the research is the fundamental issue in methodological discussions (Dawson et al., 1991; Lincoln and Cuba, 1985: 92-109; Taylor and Bogdan, 1984). The researcher's social location was an especially important issue in this study. The difficulties inherent in recruiting a group of fathers who are, by definition, likely to be avoiding 'the system' are obvious. Separated and divorced parents who consent to participate in research have been reported as forthcoming (Riessman, 1990; Mandell, 1995), but locating them especially fathers with support orders - can present a significant challenge (Mandell, 1995). One of my referral sources, a lawyer, told me: Tf they don't care enough to go to court, they're not likely to care enough to talk to you.' As a female, White, feminist academic researcher, there were limitations on my ability to reach out successfully to fathers from different ethnic and racial groups, whom I had originally hoped to include in the study. The same referral source commented: 'These guys don't trust the system and I think you probably sound to them like part of that system.' Some advantages of focusing on a homogeneous group of White, middle-class fathers eventually emerged, and will be discussed in chapter 3. Still, there is this lesson for researchers wishing to include members of specific ethnic or racial groups: it is important to collaborate with someone whom the potential participants are likely to trust. The particular effects of the researcher on the interviews for this study are difficult to ascertain. The fathers' awareness of my background in divorce practice led to references in virtually every inter-

The Study 81 view to my assumed familiarity with particular dynamics, feelings, and situations. They expected me to understand them, and perhaps desired it, and this probably had much to do with their eagerness to talk about their experiences. Also, the fathers were drawn to participation by the desire to have their stories told. They came hoping that I, in turn, would be 'heard' by those with the power to change things. Each expressed the hope that the study might call attention to the problems and solutions he identified. The fathers seemed to view me as a spokesperson for them. In this sense, the narratives were undoubtedly shaped by the context of their telling. A limitation peculiar to this study is that policy, legislation, and practices pertaining to support enforcement were constantly evolving during the period the research was being conducted and written up. Non-support came increasingly to be constructed as an urgent social problem requiring an enforcement-oriented solution; at the same time, provincial governments changed, funding dwindled, and Ontario's enforcement plan was severely 'downsized' and centralized. Even the names of the programs changed. There were changes both in the judicial system and in federal support and custody legislation. Every change or proposed change elicited strong public debate among women's groups and fathers' rights groups. It was difficult at times to say anything about the issue without wondering whether it would be applicable a month or two later. Every effort has been made to note changes - especially those relevant to the analysis and conclusions. Overall, however, the main thrust of the findings is unaffected by the changes; rather, it tends to be a case of plus ca change, plus c'est la meme chose. Researcher Bias and Subjectivity A common concern about qualitative research, especially research conducted by a solo investigator, relates to the role of researcher bias and the general lack of 'objectivity' in qualitative methods. In response to such concerns, I refer to Van Manen's reconceptualization (1990) of objectivity and subjectivity in interpretive, qualitative research: Objectivity means that the researcher is oriented to the object, that which stands in front of him or her. Objectivity means that the researcher remains true to the object ... 'Subjectivity' means that one needs to be as perceptive, insightful, and discerning as one can be in order to show or

82 'Deadbeat Dads' disclose the object in its full richness and in its greatest depth. Subjectivity means that we are strong in our orientation to the object of study in a unique and personal way - while avoiding the danger of becoming arbitrary, self-indulgent, or of getting captivated and carried away by our unreflected preconceptions. (20)

According to Van Manen's definition, this research has been conducted with both objectivity and appropriate subjectivity. My biases as a feminist practitioner in the field of divorce have been declared and exposed in each instance where reflection has revealed them to be functioning in the research or interpretation of the data. The major methodological approach to ensure the 'trustworthiness' of the data interpretation (Lincoln and Cuba, 1985) has been the use of 'triangulation' - use of multiple data sources and multiple methods of analysis.

3 The Fathers7 Perspective

The following chapters present the findings from the study described in the previous chapter. Chapter 3 is about the fathers; chapter 4 focuses on the legal context and chapter 5 on the institutional context in which the fathers' subjective positions are understood to take shape. The sixth and final chapter will discuss the interaction of subjectivity and institutional discourses against a wider ideological and socioeconomic background. In this chapter about fathers, I present a collective description of the participants and then profile each father. In the analysis of the fathers' material, I focus on their presentation of self in terms of the following subjective positions: • • • •

self as father self as husband/partner self as a person in society, a citizen self as victim, as disempowered

A 'Group Snapshot' The seven fathers are White and Canadian-born, and were thirty-seven to forty-seven years old at the time of the interviews. Coincidentally, three of them were forty-seven. Five live in a major urban centre, one in a suburb outside that centre, and one in a small urban centre some two hours' drive away. Three are professionals; another is a businessman with a postsecondary degree. One is a former musician and technician attending university as a full-time undergraduate student. Two are in the real estate business, and one of these two is a former teacher.

84 'Deadbeat Dads' Figure 3.1. Fathers' group profile OCCUPATION

CUSTODY

ACCESS

CHILD SUPPORT

SPOUSAL SUPPORT

Neil Professional, self-employed

Sole to wife

No contact for 6 years

Pays in full regularly

NA

Gary Professional, self-employed

Sole to wife

Irregular

Pays in full regularly

Not paying

Sole to father initially and now; 1 child was with wife for 2 years (joint custody)

Wife denied access now. Used to have regular contact. Father had regular access while son was with wife.

Wife has been pursued for her share of support in each custody/ access situation

NA

Donald Business, self-employed

Sole to wife

Regular contact

Paying partially, regularly

Not paying

Art Business, self-employed

Sole to wife

Regular contact

Has suspended payments

Stopped paying

Randy Professional, self-employed

Sole to partner

Regular contact, may change

Paying in full regularly, may stop

Paying in full regularly, may stop

Sole to wife; wanted sole himself

Regular contact

Paying regularly to assignee (Social Assistance), supplements informally

NA

Morris Business, commission + salary

Keith University student on Assistance (previously 'working class')

Figure 3.1 shows each fathers' occupation, status of custody and access, support status, and payment record. Five of the fathers have two children, one has three, and one has one child. The children range in age from three to twenty. Length of separation ranges from eighteen months to twelve years. All but one of the fathers were legally married to the spouse from whom they are

The Fathers' Perspective 85 separated. None had been previously married. Two of the fathers admit to having left the marriage in order to be with another woman, and the same is vaguely implied for a third father. Three left after many years of marital strain. Two of these did so after attempting to save the relationship through professional help; in the third case it was the wife who initiated the separation after years of unhappiness. Two have remarried, and one of these has separated from his second wife. Two became involved in new live-in relationships, and one of these has ended; four remain unattached. None of the fathers has had additional children since separating. Six fathers do not have custody of their children; one has joint custody of both, and at one time had sole custody of both. Four of the non-custodial fathers have a court order to pay child support; of these, three have been ordered to pay additional support (e.g., spousal support, mortgage, payments). The former spouse of one father who has not been ordered to pay additional support is on Family Benefits. The seventh father has a mediated agreement to pay child and spousal support. Six fathers - including the custodial father, who has been a support recipient in the past - have been registered at one time or another with the Support and Custody Office of Enforcement (SCOE) or Family Support Plan (FSP or the Plan). Only the one with the voluntary agreement has never been involved with the Plan. Four fathers are currently deemed in arrears by the Plan because of nonpayment of spousal support. (Spousal support is considered to be an essential contribution to the well-being of the recipient and the children.) One of these is not currently paying but says he plans to resume payments at the start of the next fiscal year at a rate below that required by the court order. Two of the four in arrears pay regularly at a rate below the court order. One stopped paying because he had an accumulated credit; later, he did not resume payments because FSP did not advise him that the credit had been exhausted. Of the remaining three, one is not obligated to pay any support, and two have always paid in full and on time; of these two, one is seriously contemplating cessation of payments. The fathers' experiences of the separation process, especially their encounters with institutions, have been both different and similar. They have followed different trajectories through the system, and an understanding of these provides a context for analysing the subjective experiences they shared in the interviews. By 'trajectories' I mean routes through the system involving encounters with various institu-

86 'Deadbeat Dads' tions in particular patterns. This constitutes the 'negotiation of structures' that Dorothy Smith describes. It will no doubt strike the reader that these fathers do not fit the typical image of the 'deadbeat dad': all of them have been complying to varying degrees with their support orders or agreements. The point to remember is that the system is designed to treat them as if they were non-payers. With one exception, all of these fathers perceive themselves as labelled and treated like 'deadbeats', and as having to protect themselves from an unfair system. Even the custodial father, who is owed child support himself, has a perspective consistent with this. His view that custody confers power on the parent who has it, over the parent who pays support, is consistent after all with the views of the support-obligated, non-custodial fathers. The homogeneity of the sample in terms of race and ethnicity is most likely a result of the methodology. Efforts to recruit fathers of other racial and ethnic origins were unsuccessful, probably because of their predictable reluctance to talk to a researcher who is representative of the system that has marginalized them in multiple ways. The sample's homogeneity with regard to race and class - White, mainly middle class - is useful in one important way, however. (The one man who describes himself as 'low class,' or working class, is currently a university student in an applied professional field.) Since the fathers' interviews reveal strong perceptions of self as disempowered and victimized by the separation/divorce process, their mainstream identities are instructive as a reference point. If this group characterizes the process as victimizing, what might we reasonably surmise about fathers from other socioeconomic, racial, or cultural backgrounds? The fathers selected themselves for the sample - that is, they volunteered. So the sample is clearly skewed toward those who felt they had 'a story to tell' about support and arrears. The researcher's request for volunteers who had experienced some 'difficulties related to support' attracted fathers with a felt need to be heard because they had experienced what they perceived as being ignored or silenced by the system. Presumably, they expected a full hearing from the researcher; each father also hoped that the research, when disseminated, might have some beneficial impact on the system. The fact that all but one of the fathers had been involved with the Family Support Plan is an artifact of Ontario's universal enforcement system; that is, there is a strong likelihood of being registered in the Plan because the law requires it in all cases where an agreement has been filed with the courts, and filing

The Fathers' Perspective 87 is a prerequisite for state enforcement. Fathers who are not involved with FSP may be unregistered for a variety of reasons, but since the reasons are associated with being removed from the judicial and enforcement system, these fathers are least likely to have experienced significant 'difficulties related to child support.' This does not mean that their former spouses have not experienced difficulty with payments; it does indicate that from the father's perspective, there may be no 'story to tell.' The variety in the fathers' situations does not permit hasty conclusions about cause and behavioural effect. Of the two fathers who have consistently paid regularly and in full, one (Neil) has been registered with the Plan from the beginning, and on the only occasion when he was deemed in arrears, it was the Plan's error. The other (Randy) has an unregistered and thus unenforceable agreement; in effect, he is paying on a voluntary basis. Neil's contact with his children ended six years ago, when his former wife removed them from the jurisdiction without notifying him of the new address; Randy faces the imminent removal of his daughter to a city nearly two hours away, and as a consequence is thinking of stopping support payments. Randy pays substantial spousal support; Neil has never been obliged to pay anything except child support. Two other fathers pay partial support but have reduced the amount, claiming inability to pay. The primary issue for each of them is the imposition of spousal support; they feel that they have been unfairly burdened financially. One of these fathers (Gary) also complains that the ex-spouse is interfering in his relationship with the children, even though they are young adults; the second (Donald) has a very cooperative ex-spouse who supports his involvement with the children. Of the three remaining fathers, Art has stopped payments for the calendar year because he has already paid what he feels is a fair amount (i.e., full child support and reduced spousal support). He also has complaints about his ex-wife's interference in his relationship with the children. Keith has no complaints about the amount of support he is obliged to pay (and does pay), because it is very low and he has never been obliged to pay spousal support since his ex-wife is on Social Assistance. He is, nevertheless, 'in trouble' with the Plan, ostensibly as a result of administrative mistakes. His chief complaint is that although he is committed to being an involved father, his relationship with his son has been forever diminished by custody and access arrangements that hurt both him and the child. Morris has never had

88 'Deadbeat Dads' to pay support because he has had either full or joint custody of his children since the separation. He does have complaints about the Plan and about the entire system that are consistent with those of the other fathers. The profiles that follow provide a fuller picture of the fathers and their complaints. They are drawn from the stories each father told in the interviews, and should not be construed as objective accounts. Whether or not the stories, as told, would be verified by external records or by others' versions of events is irrelevant to the purpose at hand. I assume that there is no version of these sets of events that would tell 'the truth, the whole truth, and nothing but the truth.' The intention here is to place each father's account in the context of a coherent, subjective narrative, as each has constructed it. Individual Portraits Donald

Donald is a thirty-seven-year-old self-employed entrepreneur. He was born in Canada and has a university degree in business. He was married for nearly thirteen years and has been separated one-and-a-half years. There are three children from the marriage, all boys, ages nine, seven, and four. Donald says it was his decision to leave the marriage. He describes himself indirectly as having grown disillusioned with the marriage and his wife when family life altered the focus of their relationship. He had been having an affair with a younger woman and lived with her after he left his wife and children. That relationship ended recently, and he is living alone in the home they had shared. He is planning to get a housemate to share costs. Donald says that he and his wife did not use mediation because they couldn't talk to each other and because his wife had engaged a lawyer. Donald hired a lawyer, and at one point consulted with an accountant as well. He and his wife have recently resumed speaking and have raised the possibility of attempting reconciliation. An interim court order, in place for over a year, gives custody of the children to Donald's wife. Meanwhile, a 'court battle' involving both the Provincial and General Division Courts is in progress: a case conference has taken place, and Donald is awaiting another pretrial, which will address the interim motion. At one point, Donald's wife charged

The Fathers' Perspective 89 him with making death threats; he claims the case was dismissed. She also charged him with assault; a trial on that charge is pending in criminal court. The specifics of the interim order regarding access have not been followed; Donald admits that his wife has never interfered with access and has in fact been flexible about it. With regard to financial support, the interim order obligated Donald to pay child support as well as household bills, car payments, nursery school fees, and so on. He claims that he was earning $3,500 a month and that the order amounted to nearly $5,000 a month. His wife claimed he was earning much more and accused him of hiding large amounts of cash. He says his lawyer discouraged him from seeking a variation of the order and recommended that he instead direct his legal fees toward a divorce trial in General Division Court. There was a delay between the making of the order and its filing with FSP, and another between the filing and the processing, so payments were being made before FSP had finished processing the case. Thus at first, Donald's wife was not receiving any money from FSP even though he was paying some support. Donald claims that his business collapsed prior to the separation; he had declared bankruptcy and couldn't afford to pay the amount ordered. He did not pay the household bills; instead, he paid an amount of child support equivalent to the maximum that FSP could garnish under the law (i.e., 50 per cent of his declared gross). His mother assumed payment of the bills. At the default hearing, the judge ordered him to pay the full amount, even if it meant borrowing the money or seeking his parents' help. Donald's lawyer advised him to get a pretrial conference under the case management system. Two case conferences have been held 'with no result' (i.e., without the parties coming to an agreement or the judge agreeing to a change in the order or arrears). Donald's lawyer went back to court regarding the interim order, claiming changed circumstances and requesting a variation of the order, but the judge ruled that there had been no change that would warrant a variation of the order. To date, four judges have been involved in the case. (All of them, Donald points out, have been women.) Donald went to an accountant for help with a proposal for personal bankruptcy; however, the support order would have survived bankruptcy, so he decided not to proceed. His lawyer is now suggesting mediation. His wife has run out of money, so she has asked Donald (through his mother) if they might negotiate directly.

90 'Deadbeat Dads' Art Art is forty-four years old and has two years of university education. He has been self-employed in property services for the past five years. After eighteen years of marriage, he separated from his wife 'physically' eighteen months ago and 'officially' twelve months ago. He describes the marriage as unhappy almost from the start. He claims that he stayed for ten years after discovering his wife had had an affair, but eventually decided to leave. The two children - girls eleven and fifteen - live with their mother in an apartment, since the house has been sold. Art lived for some months in his married sister's home before moving into an apartment. The girls have dinner with him mid-week every week and also spend alternate weekends with him. Art does not have a new partner, and neither does his wife. According to Art, the two of them consulted a series of seven counsellors and therapists during the marriage. Since separating, Art has continued in therapy. He has also consulted two psychiatrists about his daughters' adjustment. The family participated in a local agency's family separation group program. Art says that he and his wife initially planned to mediate an agreement without lawyers. Then his wife hired a lawyer who was a family friend. At that point Art hired a lawyer as well; since then he has consulted several others. The couple 'wound up' in court a few weeks later, with the wife seeking a support order. The result was an unexpected interim order for joint custody, which Art had requested (his wife had requested sole custody). Art considered an interim order for $1,000 child support and $1,300 spousal support monthly to be more than he could afford. An appeal of the order seemed futile, so he requested mediation, reportedly offering $1,500 total support monthly. His wife agreed to mediation because she was unhappy with the joint custody order and still had assets and liabilities to divide. Since she was funded by Legal Aid, they had to wait about three months for mediation. Art claims that his lawyer walked out of the mediation process because the wife's lawyer was insisting on a new, higher support order. Later, the wife denied having instructed her lawyer to do this and initiated direct negotiations with Art. She presented him with a negotiable proposal, then rejected his counter-proposal and postponed the court date another month. This time the judge stayed enforcement proceedings and said the support would be paid from Art's half of the sale of the house. Shortly before they were due back in court six months later, Art

The Fathers' Perspective 91 was advised by several people whom he consulted informally (in addition to his lawyer) to declare bankruptcy because the 'best case scenario' in a trial would be bankruptcy plus huge legal bills. His wife had no money to pay her half of the marital debts, even though the judge had ordered her to do so. Bankruptcy entailed freezing the account from which support had been ordered, so further collection was blocked. Art says that at this point he was compelled by lack of funds to fire his lawyer; then his wife fired her own lawyer. The next court date resulted in further postponement when it was discovered the file had mistakenly been sent to another district. The couple now find themselves in what Art describes as a 'legal black hole.' A trial was scheduled, and then cancelled by the judge without notification, after a call from his wife's second lawyer claiming that matters had been settled. Without a trial, a long-term settlement is impossible. Art recently was granted Legal Aid funding, but his lawyer does not accept legal aid work and has agreed instead to work pro bono. Art's wife, whose Legal Aid coverage is exhausted, has also hired a new lawyer. The current situation is that Art's lawyer has sent a proposal, and the wife's lawyer has responded with queries. Neil

Neil, forty-seven years old, is a self-employed, university-educated health professional and amateur photographer. He and his wife were married eight years before she initiated a separation nine years ago. Neil says he had been unhappy for years but had stayed in the marriage until his children were two and five years old. The girls are now eleven and fourteen. According to Neil, his lawyer discouraged him from the outset from seeking joint custody, and sole custody was assigned to his wife. His former wife moved to northern Ontario after about one year of separation, and to British Columbia two years after that. Both children have been with her since the separation. Neil has had no contact with them since they moved away six years ago. Neither spouse has remarried, but Neil has had a non-cohabitational relationship with a woman for several years. His former spouse had a new partner shortly after the separation; reportedly, the relationship ended after she was abused by him. Neil has hired and fired two lawyers: one who originally advised him regarding custody, and one who continued to work on the case beyond Neil's commitment to pay and then charged him for the unauthorized services.

92 'Deadbeat Dads' The Office of the Official Guardian (OG), the police, a social worker, and FSP have all been involved in this case. The OG's office did an assessment when Neil objected to the removal of his children from the area. Its finding was that the children's relationship with their father was not such that their moving away could be considered against their best interests. The social worker was a counsellor in private practice contacted by Neil's wife; Neil attended a joint counselling session with his wife. FSP sent Neil a warning letter when the first several cheques he submitted were unrecorded, apparently because they had been lost. The police got involved when Neil picked one daughter up from school without her mother's knowledge or consent. Neil claims that when the child did not arrive with the school bus, the mother called the police and accused him of kidnapping. By the time the police arrived at the mother's home, so had Neil and the little girl. The initial agreement was negotiated by lawyers. It gave sole custody to the mother and reasonable access to Neil. The order for child support amounted to 60 per cent of Neil's net income. Because he is self-employed and therefore cannot be subject to wage garnishment, he pays directly to FSP. He regularly pays the full amount and has never missed a payment. Spousal support was neither sought nor ordered. He lived in his parents' basement for three years before establishing a separate residence. Discouraged from seeking sole custody, Neil agreed to access every weekend, but he claims his wife often made it hard for him to see the children. His older daughter grew 'estranged' and stopped wanting to see him. When his former wife wanted to move far from the city to attend a particular postsecondary program, he objected, but the court allowed her to go following the OG's assessment. Neil planned to pursue his objection, but the judge had indicated to his lawyer that the cause was hopeless. After the children moved, Neil did not see them often. Their new home was more than a full day's drive away, and plane fare was 'expensive.' Now visits took place only on school breaks and holidays, when the girls would fly in for a visit. One of the children became angry with Neil after overhearing an argument on the telephone, and she stopped wanting to see or speak to him. He says he made regular Sunday night phone calls but did not always get to speak to them. He also sent birthday and Christmas gifts, which were not acknowledged. Eventually, he wrote to the children saying he would leave it to them to initiate contact. When they didn't respond, he gave up trying to stay in touch. Finally, he received a letter from his wife

The Fathers' Perspective 93 saying that she had moved to a distant province with the girls; she gave no address. Neil has not attempted to locate the children or to reestablish contact with them. Neil states that he intends to support the girls at least until they are eighteen, and beyond that if they are still attending school. He has established a trust fund for them. Randy

Randy is a self-employed health professional in a small city in southern Ontario. He had an eight-year-old daughter with a woman, W., his common law wife for approximately eight years. They separated less than a year ago and have a voluntary separation agreement for spousal and child support, which was negotiated with the aid of a paralegal/ mediator and ratified by their respective lawyers. The child lives with her mother, who has custody, in a nearby suburban home, which Randy purchased so that the child could remain in her school district and close to him and to extended family. The house is registered in W.'s name. Since the agreement was not filed with the court or registered with FSP, support is paid directly to W. According to Randy, he pays 'early, every time.' Randy says he had been planning to end the relationship with his former partner long ago, when she informed him she was pregnant. He decided to remain with her and the child, but he was unhappy and finally ended the relationship. He has paid the mortgage and full spousal and child support on a regular basis, and sees his daughter when W. permits. Recently, W. announced that she was moving to a city about two hours away with their daughter and a man she met recently. Randy has sought advice about how to keep W. from taking the child. He has consulted with the original mediator; he has also sought two additional legal opinions and is contemplating a third. In addition, he has met with an educational psychologist and attended one meeting of a single fathers' group. He agreed to participate in the research in order to seek my opinion as a divorce counsellor. The professionals consulted by Randy have offered three different opinions. He explains that the original lawyer says he has no choices now: he will not be able to stop W. from taking the child, and he will not be able to stop paying support. The second, a woman, encouraged him to fight for custody and told him he can win. The psychologist, whom he consulted about how to conduct himself, advised him to

94 'Deadbeat Dads' back off from the child, ostensibly as a strategic manoeuvre in dealing with his former partner. If he is unable to gain custody and cannot keep the child in the jurisdiction, Randy is considering cessation of support. Morris Morris is a forty-seven-year-old former teacher who has worked for several years with an international business firm. The couple separated six years ago, after fourteen years of marriage, and were divorced four years ago. They have two children: a boy, fourteen, and a girl, nine. Both spouses have remarried, first the wife, then Morris three years ago. Morris's second wife has a young daughter from a previous relationship. The separation agreement was negotiated with the aid of a mediator/ lawyer and ratified by the court as an order giving sole custody of both children to their father. Apparently the mother didn't oppose this. At this time, the mother was paying child support equivalent to the monthly Family Allowance rate. The couple's assets were divided as part of the agreement. When the son chose to live with his mother at the age of twelve, she requested joint custody of him. Morris responded with the proposal that custody of both children be made joint, and she agreed. Two years later, the boy came back to live with his father, sister, stepmother, and stepsister. Morris says he has sought the advice of a family counsellor at various times since the separation. After his former wife and her new partner bought a larger home and went on vacation, Morris hired a lawyer in an effort to get more child support and won a second agreement with 'substantially more' support. The new agreement was registered with FSP, but FSP did not act to enforce payment when Morris complained of non-compliance until Morris's second wife intervened. He found he had to call each time payment was late or reduced. During the time when there was one child living with each parent and the switch had been made to joint custody, 'the support obligation was eliminated.' When his son moved back with him, Morris reapplied for child support. Neither Morris nor his former wife has sought to change the joint custody status, even though both children are now living with Morris. Morris claims that when the boy declared his wish to return to his father, the mother reacted with verbal and physical abuse toward the

The Fathers' Perspective 95 child. After consulting with a counsellor, Morris decided that both children's visits with their mother would be suspended until she either underwent a psychiatric assessment or agreed to supervised visitation. The mother's lawyer responded that the children were old enough to control visits themselves and could arrange them with her directly. Morris's answer, through his lawyer, was that he insisted on involvement in visiting arrangements, or there would be none. Keith

Keith is a forty-four-year-old full-time undergraduate student who previously worked as a musician and service technician. He separated from his first wife twelve years ago and has been divorced for nine. There is one child of that marriage, a fifteen-year-old son. There are also two older girls, daughters of the wife from a previous relationship, who lived with the couple during the marriage. Keith subsequently remarried (to the woman for whom he left his wife) and redivorced; he is currently living with a new partner. His first wife was living with a new partner soon after the separation, and recently married him. Several years ago they moved with Keith's son to a town two hours north of the city, where Keith still lives. Keith left the marriage when his wife confronted him about suspicions of an affair. He says that when he admitted he was seeing someone, his wife demanded that he hand over his keys, leave, and never return. This he did, unaware of the impact his leaving could have on custody and access rulings. Soon after, he consulted with more than one lawyer. Initially, Keith claims, his wife severely restricted his access to the boy, and he wanted to change the custody arrangement to joint or sole paternal custody. He says his lawyer discouraged him from seeking custody, predicting that the court would likely assign custody to the mother, since Keith had left the family. He warned Keith that fighting for custody would be very expensive. Keith abandoned going for custody but went to court, represented by the same lawyer, to establish a firm visiting schedule because an informal one was not working to his satisfaction. The court ordered a regular visiting pattern involving alternate weekends. Keith feels strongly that the custody decision was detrimental to his son because it left him with the parent who was less capable of meeting his needs and kept the more able parent at a distance. At first, Keith was granted two-hour visits with his son on

96 'Deadbeat Dads' weekends, provided his girlfriend was not present; after four years, overnights were permitted, but this was not put into a changed order and depended on the mother's good will. When the boy's mother made plans to move out of town, Keith consulted a lawyer who told him to leave well enough alone - if he tried to prevent her, she would probably revert to the strict letter of the order. Keith objected that the mother was suspected of drug dealing and not a fit parent, but since he had no proof, his lawyer could not build a case on that information. For the past several years, Keith has driven four hours round trip at the start and finish of alternate weekends in order to visit his son in the city. For this he needs a car; efforts to have his son come by bus did not work out. There are also visits on holidays and summer vacations, and Keith has invited the boy to live with him if he comes to the city to attend university. Keith's application for Legal Aid was turned down, and his appeal of the decision was denied. He believes that a person's class determines his or her treatment under the law, because the judicial system is so expensive to use. Keith's support order is for $100 a month, which is paid to Family Benefits as the Assignee, since his wife is on government assistance. In principle, the $100 applies also to the wife's two daughters, since Keith had acted as parent for them during the marriage and was considered responsible for their support under new legislation. Support payments were made to FSP, which forwarded them to the Ministry of Community and Social Services. In 1991, FSP took Keith to court for arrears after he reduced payments because the girls had left their mother's home. FSP agreed that he had in fact overpaid, and instructed him to suspend payments until further notice. He claims he was never advised to start again. FSP has now caught up with him for arrears again and is taking him to court. Since he is a full-time university student on government loans, Keith doubts that the court and FSP will decide to pursue him vigorously for arrears. Keith is satisfied with the low order for support because it is within his means and allows him to spend money on his son informally as he sees the need (e.g., for new clothes, or for school books, or to pay dental bills). He believes that if he paid additional support either to FSP or to his ex-wife, it would not end up being spent on the boy. This way, at least, he knows his money is benefiting his son directly. Keith feels that the system is too 'legalistic' and operates on the assumption that fathers don't care about their children. The courts

The Fathers' Perspective 97 assume that mothers are the better parents, and treat fathers as if they're good only for money. He believes that in making decisions about what's best for children, the courts do not pay attention to the circumstances of individual families. Decisions are made 'in the hallway' instead of through full and open discussion among the judge and family members. Gary Gary is a forty-seven-year-old professional. For the past eighteen months he has been a partner in a law firm, which he joined after leaving another firm. He was married for twenty years and has been separated for two, but is not yet divorced. There are two children from the marriage, a nineteen-year-old son and a seventeen-year-old daughter, who chose to stay in the marital home with the mother. He left after what he describes as years of mutual unhappiness. When he made the decision to end the marriage, his wife was opposed and very angry. At first, Gary lived in a city apartment and his children visited him on an irregular basis. He now lives with a girlfriend but denies that they were involved when he left his wife. His current partner's two children live with them in a home owned by the woman; Gary pays her the equivalent of rent. He seldom sees his children, since they are 'uncomfortable' coming to his home, and they contact him infrequently. Gary has undergone psychotherapy himself (since long before the separation) and some counselling in the past together with one of the children. He occasionally attends group programs for separated and remarried adults. Gary encouraged his children to go for counselling, but so far they have not. Husband and wife were represented by two high-profile family law lawyers. There is an interim order for spousal and child support of $9,000 per month, but he has been paying only $5,000 a month since the order. The latter figure is based on the couple's original agreement, arrived at through lawyers, which established the support level at $5,000 - 50 per cent of his gross income. Gary did try to get a settlement as part of the divorce proceedings, but his wife resisted his attempt to lower support payments. A senior judge heard the case in General Division Court and ordered even higher payments, in addition to assigning court costs to Gary. He claims his wife agreed to establish a business and become self-supporting, but this never

98 'Deadbeat Dads' happened. Gary says his request for a case conference was denied because his wife would not consent to it. Gary then sought a second legal opinion, and wanted to return to court for a formal hearing. He also consulted a leading insolvency lawyer about the course of bankruptcy and had informal consultations with friends and colleagues who practise family law. Gary says that during an adjournment of the case, he paid what he felt he could instead of the amount ordered. When the hearing did occur, the judge refused to hear evidence from Gary's lawyer. Gary then fell into arrears when he chose unilaterally to adhere to the 50 per cent of gross principle in the original agreement. He is now scheduled for a 'show cause' (default) hearing. He risks a jail sentence if he cannot satisfy the judge that he is truly unable to pay his arrears. Gary says that in the months before the order was filed with FSP, he made payments directly to his wife that were not credited by FSP. He is therefore considered in arrears for the amount paid to her, not just for the 50 per cent figure he failed to remit. Gary presented an affidavit to the court expressing concern that if FSP notified the bank to seize his account, his loans would be called and he would be forced to sell the matrimonial home. FSP took action nevertheless, and tried, inappropriately, to garnish his wages - first at source, then through the bank, which froze his accounts. There had not yet been an enforcement hearing, and Gary believes his wife's lawyer used personal connections with senior FSP personnel to have him pursued aggressively. Gary's lawyer and other experts in family law have advised him not to draw further attention to himself by trying to negotiate directly with FSP. A request for a return to the original judge on the basis that his order was left open for review was dismissed by the General Division judge, who upheld the original order. This judge 'ignored' all evidence about Gary's debts and income. Several lawyers advised Gary not to waste time appealing because no judge would challenge the senior judge's decisions or even give him leave to appeal. At this point, opposing counsel has moved to strike pleadings, which would rule out a trial. Final judgment would then end up taking place without trial. The judge has not yet ruled on this motion. Presentation of Social Identities Though the fathers interviewed faced different situation and voiced

The Fathers' Perspective 99 various complaints, some generalizations can be made about how they perceive themselves in society. All the fathers share the perception that because of serious flaws in the system for regulating custody, support and access, they as fathers and as men have been treated or characterized in ways that have changed how they see themselves and are seen by others. In the fathers' interviews I have identified several constructs related to subjective positions (i.e., ways the fathers identify themselves or perceive they are identified by others). These subjective positions are as fathers, as husbands, as what I have called 'citizens/ and as victims or disempowered subjects. These four social identities, which appear throughout the interviews, are the areas of subjectivity most relevant to this inquiry. They constitute the themes1 that best help answer the question of how fathers take up identity positions in relation to the public discourses associated with separation and divorce. The social identity of father relates to the various meanings of fathering. Pertinent here are what it means to be a good father (responsible caretaker/provider, nurturer, guide, hero, source of stability) or a bad father (negligent, irresponsible), the priority given to fathering before and after separation, and the feelings between fathers and children. The identity of husband includes the experience of marriage and separation; the man's role as provider, lover, and parent; and the relationship between the marriage and the parent-child dynamics. I have called the third identity position citizen because it focuses on issues of personhood in a societal context. It is about being a 'good' person, or 'bad' person, about being a law-abiding citizen or a criminal, and about entitlement and rights. The identity of victim or disempowered is about loss of control, abused rights, and perceptions of social diminishment. Each area of subjectivity is constituted by a number of themes, which include the following: • • • •

relationship (feelings, roles, dynamics) finance (income, payments, expenses) justice (rights and fairness) morality (good person, bad person; right and wrong; responsible, negligent) • combativeness (adversarial relationship, conflict, winners and losers) • the child (in terms of best interests and as objects of relationship) • gender equality (in terms of rights and responsibilities)

100 'Deadbeat Dads' These themes and the discourses from which they are drawn exist alongside one another in various combinations, sometimes harmoniously but often not. At times one recedes and another dominates. Sometimes the discourse is so in tune with familiar social constructions of fathering that we hardly notice it; other times, it seems so jarringly out of place that it demands our attention to what is happening. What It Means to Be a Father Good Father/Bad Father

A few excerpts from the interviews with four of the participants (Donald, Art, Neil, Randy) demonstrate how multiple discourses shape the ways that fathers present themselves and their experiences. We begin with Donald, whose visiting arrangements are the most flexible and whose former spouse is the most cooperative. (Donald has never wished to have joint or sole custody of the children.) He describes his relationship with his children and his interaction with them: Fortunately, the relationship that I have with my kids is fantastic. It has been, I would say ever since the exit date, as I define it. I always had a good relationship with my kids. Again, maybe [it's] the fact that they are boys. They tend to look at me, today anyway, as their best friend. And I'm very involved with them, was when I was in the marriage, and continued on. They're the most important part of my life as it relates to this whole family scenario. So I think today I will tell you, I get along better with them than I did when I was at home, for a variety of reasons.

Asked for details of his access arrangements, Donald explains that his wife would be willing to permit more access than the agreement stipulates. He can have them 'any time I want... virtually every weekend, if I want.' He thinks this is because she 'wants a break' from them. He adds that the visits are precious to him: 'So you want to maximize your time spent with them.' Yet it turns out that he sees them less than the order allows: Q. How often have you ended up actually seeing them? A. In the summertime, I would say, four out of seven days. And now, with

The Fathers' Perspective

101

school back to [its] regular schedule, probably three out of seven. But generally, it's a Thursday night, I'll take them out for dinner. If I don't have them on the weekend, I'll see them on the weekend, depending on whether I'm working or not. My commitments to work sometimes include seven days a week, six days a week, so ... Q. So, the rate - I'm just trying to get a really good sense A. Yeah, sure, go ahead. Q. The rate that you see them is about, what? They stay over for a full weekend about what, once every ? A. Three weeks, maybe. Q. Three weeks. A. Yeah. And it depends. A lot hinges on my schedule, and where I am and where I have to be. Again, if I have to be at work on a Saturday morning, then they're less likely to sleep over only because it's too early to drop them somewhere else and they're better off being at home. My ex works on Saturdays so my mother would pick them up.

Asked whether he helps with homework and gets involved in the children's regular activities or is limited by his 'schedule/ Donald says: A. The latter. Yeah, definitely. And homework is something that's done , generally right after school, or it's already completed if it's Friday. Maybe the homework load is less. I really don't know what they do, homeworkwise, for the weekend. But it doesn't seem to be an issue, I should say, that we have to deal with. Q. So it's not something you have a great deal of involvement in? A. No, not at all.

Donald then describes how he and the children spend time together. He begins by describing their shopping expeditions for 'candy and junk food' and then explains that they spend their time 'hanging out/ visiting Grandma, playing ball in the park, going to the beach, and generally engaging in fun activities. He says the children look forward to their time with him; they all go off together in a way described as carefree. Donald is emphatic about his sense of responsibility as a parent: 'My attitude is, yes, I left my wife, but I didn't leave my three kids. I'm still responsible for them, no different than she's responsible for them.' Donald has established himself as a good father in his own terms. Evident here is the discourse of father as 'pal/ as 'buddy' - a relationship of a stereo typically masculine kind. This discourse then gives way

102 'Deadbeat Dads' to talk about business (work), which in turn gives way to discourse of 'the best interests of the child' (i.e., If I have to work, the children are better off at home'). He specifically excludes a number of parenting functions - such as involvement in school work - from the domain of 'responsibility'; he then declares himself a responsible parent on equal terms with the mother. In other words, to Donald being a responsible father is mainly about being a pal to his children and maintaining some interest in them. He acknowledges without apology that he gives his business priority over time with his children. To him, a responsible mother is one who provides care on a daily basis. He presents the two roles as equivalent in terms of responsibility. Art spends time with his daughters more often and more regularly than any of the non-custodial fathers. His relationship with his former wife is so strained that he will not communicate with her directly. Art expresses intense frustration about his inability to be the good father he believes himself capable of being. Although the judge ordered interim joint custody, the girls chose to live with their mother. I asked him whether this was what he wanted: I wanted joint custody, only because I didn't want her to think that she could make all the decisions that she felt she wanted to make without any input from me. I also knew that the reality of the situation was that the custodial parent, or the residential parent, is the one that makes the vast majority of the decisions.

He tells the story of the marriage as a series of stages in which he made different - and ultimately unsuccessful - attempts to relate to his wife. He says that marital issues interfered with his functioning as a parent, especially when he finally became depressed. I was not the kind of father that I wanted to be, because I was affected by what she was doing to me. And after eighteen years, when I finally found myself sitting on the couch, watching TV, reading the newspaper, sleeping, and doing absolutely nothing else, because it didn't matter what I did, it wasn't good enough. I realized I was dying there and I had to get out. There was nothing else I could do. And obviously it affected the way I dealt with my children, because if I couldn't do anything else right, how could I possibly deal with my kids properly? I wasn't allowed to spend the day with them and do whatever they liked to do, because I got criti-

The Fathers' Perspective 103 cized for it by her. No matter what it was! And when I'd tell her that That's what the kids asked to do' - it didn't matter. Asked whether he now has more opportunity to be a father in his own way, he replies: I have an opportunity, except that she is being very vindictive, and very angry. She is using the children to get back at me, because that's all she has left. He claims that 'a couple of psychiatrists' have told him his daughters will undoubtedly be psychologically damaged by their mother: I would like to try and save them from that, but I can't at this point, because it's just not possible. Also, at this point, they prefer to live with their mother and I'm not about to drag them through that kicking, scratching, screaming and yelling kind of scenario. Asked how his children are managing now that he is no longer making support payments, Art says: I added up the amount of money that she received up until July and basically she received over the amount of money that a judge would have ordered based on my '94 income. I cannot do anything about the fact that she may or may not have managed that monies. Because if she went through the entire year expecting the $2,300 a month to continue, I can't do anything about that. Things are very tight on both sides. As I said, I don't know from month to month if I'm going to be able to maintain my apartment. I'm imagining that she is getting money from her mother if necessary, if that's the case. Unfortunately, she ... Q. But you have not been paying any support. A. No. I'm under no order, and the amount of money that she received up until July is the amount of money that she would have normally received over the course of the twelve months! If we were able to get into court! Q. So are you saying that in a sense, you feel you've paid a year's worth A. [shouting] I've paid my year's support out of, quote, my half of the sale of the house! Art's construct of his responsibility as a father during the marriage

104 'Deadbeat Dads' was to spend time with the children doing things they enjoyed (father as pal). Now he focuses on his perceived obligation to foster their psychological development by mitigating the effects of an emotionally destructive mother. According to him, his ability to be a good father has been interfered with by his wife in both modes. Talk of control, money, and the children's best interests slip in and out. Eventually, Art's reflection on responsibility as a parent gives way to talk of financial responsibility as a creditor, and the children disappear from the picture. Of the six fathers who have been involved with FSP, Neil's meticulous payments have made him the only one never deemed in arrears; he is also the only one of the fathers who has had no contact at all with his children for an extended period (six years). Neil conveys the importance of his relationship with his children in a number of ways. 'I always wanted to be a father,' he explains. His own father left his mother, and he was raised by a stepfather who 'did his best to fulfil the father role. I mean, he was my functional father. But, it's not the same.' For this reason, he is sensitive to the impact of losing a father. 'I mean, my kids are losing big time.' He says he remained in a marriage that 'would have killed me' because he was 'waiting until the kids were older/ Once separated and struggling to keep up his relationship with them, he realized that his children were suffering. He tells the following story: Let me tell you about what happened. I had a dream. I knew it had something to do with the wisdom of Solomon and I couldn't remember what that was about. I asked one of my clients who knows a little bit more about the Bible than I do and they came up with this story of the baby. And I realized, at that point, the pressure that those kids were under not to maintain their relationship with me. The younger daughter, who's so much like me, she collapsed. I really missed her because I was really bonded with her. But I also understand they have to chart their own life pattern. I really don't know what to do at this point.

Neil believes that the state ought to protect both the needs of children for their father and the right of the father to his children: There has to be some way that two parents who have given birth to these children need to have some kind of, say, legislated input... into their lives.

The Fathers' Perspective 105 But he later makes a statement that renders parental rights contingent on one's level of caring: Now, in cases where a parent has no interest. OK? In cases where there has been abuse, then they're out of the rule. It's the children we need to look out for.

Neil gives high priority to being a father. He perceives that at times the needs of the parents and of the children do not coincide, and thinks that a good father is one who cares enough to put the children's interests before his own. Throughout his interview, he talks more consistently than any of the other fathers about the children's best interests. Neil also talks about the rights of children and of parents. He speaks of parental involvement as the right of both the children and the parents, but adds that a parent must earn that right by demonstrating caring. He seems to correlate justice and relationship: the rights of a 'bad parent' are diminished. Randy has maintained a home for his former common law partner and their child and has paid regular support. According to him, access has often been interfered with and may soon be seriously disrupted by the mother's plan to move to another city with the little girl. He is considering stopping all support payments if this happens. After the standard introduction to the interview process, but before it actually begins, Randy says, 'I want to know who determines the best interests of the child.' When I ask him to explain his current situation, he outlines the terms of the agreement: It specifies 'primary residence and primary care with the mother but parents will confer regularly with each other re day-to-day matters and take each other's concerns into account.'

He indicates that things have not worked out quite the way he expected, given the terms of the agreement. Q. If you could work out some kind of ideal, what would it be? A. The ideal was to agree to a separation agreement. [W.] should stay where we bought the house and continue in her education, her activities. I should have full access. She continues getting support and she gets free training. I agreed to give her enough money that she could go to school, full time, the first two years and not have to work outside the home at all.

106 'Deadbeat Dads' You can tell from that figure [support amount] that she can do that if she wants to. She has not chosen to pursue that at all. She has a person move in two weeks after meeting them, to a house where my daughter is. That's wrong. I think that's wrong. Legally that might not be wrong, but morally I think it's wrong for the child.

Randy had expected that a formal agreement would protect everyone's interests. For him, the point of establishing access to both parents and extended families was to ensure his daughter's stability and safeguard his role as her father, but he now perceives that only the mother's interests are being protected. To him, being a good father means protecting his daughter's developmental well-being and having active involvement in her life. He welds the child's best interests to issues of justice and morality in a way that makes perfect sense to him; however, that seam has been overstressed by events that are prying the two elements apart. The participants tend to see fatherhood as either active caring in the context of an emotional attachment to their children, or as acceptance of responsibility in the context of moral or societal obligations. Some of the fathers talk about both meanings. Every father I interviewed defines a 'bad father' as one who does not care or is not responsible; all the fathers except Donald express disapproval of the 'bad father.' Each father clearly distinguishes himself from bad fathers; none of them identify with the T^ad father' construction. Most of them try to differentiate a truly bad father from those fathers whose behaviour seems negligent but is explainable in relation to the wife, the system, or the circumstances. In short, each father works at establishing his own credibility as a good father and is distressed by any perception that he might be judged otherwise. Although some of the fathers are critical of their own parenting during the marriage, they attribute their failures to an unhappy marriage, the direct interference of the mother, and/or limitations resulting from absorption in work. Each of the fathers also paints a negative picture of the former spouse, who is now (if she wasn't always), in one way or another, a bad mother. Each of the mothers is constructed as a bad parent, because of her childrearing methods, her failure to protect the children's relationship with their father, or her unstable personality. It is as if the fathers are trying to counterbalance the acknowledgment of their own failings. Themes and discourses that appear beside one another, often incongruously, sometimes produce tensions that offer some insight into the

The Fathers' Perspective 107 struggles fathers may be experiencing. We can hear the coexistence of contradictory logics and see how certain discourses unexpectedly appear or disappear. Every father refers to himself as a responsible father, but this discourse often coexists with the absence of any discussion of relationship with the child. Love, concern, worry for the child, even the child himself or herself at times disappear from a father's talk, while discourses of responsibility remain. Sometimes tension arises from the discourse of responsibility and a corresponding absence of key behaviours that constitute everyday social constructions of 'responsible parenting.' The question, 'Are you concerned about the effect on your children if support is not paid?' is consistently responded to in terms other than relationship (i.e., caring or feelings). For example, this excerpt is from Donald's interview: Q. Did you worry at all, during the time when you were not paying the bills, and you didn't know that your mother was, were you worried at all about how the kids were doing? A. Oh, absolutely! absolutely*. Q. Can you tell me about that? A. Absolutely. Deena, there's no doubt in my mind that the kids are the prime focus and importance in my life and in my wife's life, and they have to be provided for. No doubt about it! But, again, common sense has to prevail. If we're living a lifestyle that was supported when I was making in excess of $120,000 a year, now I'm making $42,000 again, you don't have to be a Philadelphia lawyer to realize that the nut you're trying to crack is too big. OK?

He goes on to say, 'If it's not there, it's not there. Now, if we were together as a family, what would I have done?' He then outlines a number of possible solutions to the dilemma created by the failure of his business. In other words, the financial problem would be resolvable within marriage, but in the context of separation there is no will to work it out. Even when a father is emphatic about his concern for the children's welfare, as Donald is above, there is an abrupt shift into the subject of personal finances or equality (e.g., 'Why should I have to have all the financial responsibility?'). How does the father process these discrepancies? The answer seems to lie in the nature of the discourse that the individual has used to present himself as a father. For example, if the meaning of fathering is

108 'Deadbeat Dads' shaped by the discourse of father as pal (i.e., of male bonding and/or having fun), then a responsible father is construed as one who ensures that his children get to have fun times with him. If fathering is viewed as providing emotional security within a nurturing relationship, responsibility may involve regular visits, caring interaction, or protective intervention. If fathering is about exercising control, in the sense of influencing the child's development, values, and experiences, then a responsible father may be one who continues to have decision-making rights. In situations where fathers perceive themselves as subject to the former spouses' power, any discrepancy between one's identity as responsible or caring on one hand, and self-described behaviour that suggests absence of responsibility or caring, seems to be explained by the absence of control. In other words: 'I am a good (responsible/caring) parent, but I can't control my wife/my work/lack of income, which interferes with my good parenting.' Thus the discourse of control tends to mediate the discourses of morality and of relationship. The shifting of discourses is especially illuminating in Randy's case. He was generally satisfied with the original arrangement, which he considered just (fair, right). It established reciprocity between support and access. The plan was for spousal support to end in a few years, once his former partner completed her education and went back to work. This was compatible with the child's best interests because it allowed for the child's continuing relationship with both parents, and for stability, emotional security, and financial well-being. When the wife's move to another city endangered both reciprocity and the promise of equal financial responsibility in future, Randy threatened to give up paying support and maintaining a relationship with his daughter 'to close that chapter' of his life. He expresses confusion and distress about how to protect himself from being victimized by his 'ex,' in the sense that if he places the child's best interests first, he will have to tolerate unjust and painful emotional conditions for himself. The consequences of a non-reciprocal arrangement represent not only injustice to Randy, but also the continuation of the couple's previous relationship. He had disliked being controlled by her and had intended to end that control when he left. Now he finds that it hasn't ended. He clings to the discourse of justice at least in part because it positions him as having rights and the degree of control that he deems fair. From this position he has been able to keep the child's interests in the foreground. When he perceives himself as positioned under the control of his 'ex,' however, he has to struggle to keep the child's best interests in view:

The Fathers' Perspective 109 [The psychologist] recommended actually that I back off, that I not show interest in [the child] purposefully. Q. For what reason? A. The reason would be to try to get it so that [child's mother] can't exert so much control over me, but I'm thinking that I really don't want to abandon my child. And I don't want that feeling in her mind that Daddy hasn't called for four weeks - maybe all that stuff that [her mother] is saying about him is true. You know what I mean? That's a very difficult decision.

He does not wish to become a bad father by abandoning his child, but he also expresses great distress that he may become a victim of injustice. When the child's needs threaten to compete with his own (for control and self-esteem), he expresses intense inner conflict about what to do (see the following section). The professionals he has consulted (a mediator, two lawyers, a psychologist, and the researcher) have not helped him; he is disillusioned with the whole justice system, with lawyers and other 'helping professionals.' He is caught between contradictory values and sets of logic and is unable to find a discourse that resolves his dilemma satisfactorily. He has derived considerable comfort, however, by seeking out other single fathers, who have reassured him that fathers 'can't always be at fault.' The desire to escape the identity of bad father emerges once again. Neil has a very different perspective: for him, being a father is about the morality of relationship and responsibility (being a 'good person'), rather than the morality of rights and fairness. The way he sees it, his role as father has been devalued by his former wife, the courts, and the school, and he resents this. Fathering for him is almost entirely about caring and commitment. He lost his own father at a very early age, and he admired his stepfather, who emphasized (and exemplified) commitment. Now he is determined to behave like his ideal of a good father. The 'dream story' in which he gives up his half of the child in order to save her is his way of expressing his desire to place the children's interests ahead of his own while still maintaining his self-respect. In the Bible story that appeared in his dream, the mother judged by the wise king to be authentic was the one who placed the baby's life before her own desires. Neil has another way of continuing to see himself as a 'good father' in spite of the loss of contact: Tf there is anything good that they'll say about me, it's that I never missed a support payment.' He has come to see the fulfilment of his support commitment as the

110 'Deadbeat Dads' only way left for him to relate to his children; the emphasis on responsibility has become a substitute for the missing focus on children and feelings. Randy perceives paying without adequate access as an intolerable loss of control; in contrast, Neil constructs making the payments as 'the only thing over which I still have some control.' The discourse of enforcement appears briefly as well: 'The other reason is, I have no doubt what would happen if I didn't pay/ Here and elsewhere, Neil indicates that fear of civil authority - in other words, his relationship with the state - is an additional motivating factor. Father as Non-parent

No matter how they construct fathering, at some point all the fathers express a sense of profound loss regarding their marginalization as parents (or their fear of it). Morris explains that before the separation, in his children's eyes he was 'this guy who walks on water.' At the point of separation, he feared his wife would turn the children against him, and he 'strategized' how to 'stay front row and centre as a father in order to mitigate this. And so I stayed front row and centre as a father.' Ultimately, he gained custody of both children. Neil, Art, Gary, and Keith all talk quite poignantly about how the role they ought to play or would like to play in the lives of their children is no longer possible. Keith and Art regret that they cannot offer their children a stabilizing presence to counteract an unstable, destructive mother. Each believes that his relationship with his children has been profoundly damaged. Gary believes that his wife 'poisoned the children' against him and even feels betrayed by his children; he misses having an easy relationship with them and is stung by their anger and distance from him. 'They should be part of my life/ he says. Yet they resist this. Ironically, when they were young he was often away and accepted a marginal role. Now he finds this same role unacceptable. Neil describes how he was slowly edged out of his children's life after the separation. He sensed that his children were aligning themselves with their mother against him, and he grieves the loss of his close relationship with the child who had always been 'daddy's girl/ Randy fears that if his daughter moves away, being a father will be unbearable, because there will be no way to live this role without sacrificing his own emotional integrity. Any possible outcome feels unfair. Thus, Randy is left with the perception that there is no justice.

The Fathers' Perspective 111 Donald admits to leaving his wife for 'greener pastures ... to live the Molson's beer commercial.' He talks about finding the sexual adventures he sought. But now he is alone again. He concludes his interview with the following admission: I don't think that too many in my position would say it is worth it, because the bottom line is that you are not going to have the life with your kids that you should have had. Q. That's true. A. No matter what - even if you have access as a father. Because the juggling now, the weekends back and forth, is no way to live.

Husband/Provider The extent of the fathers' talk about their marriages is surprising. As well, the relationship between the roles of husband and provider is striking in the case of the five fathers whose agreements included spousal support. The social construction of an identity as husband/ provider revolves around a number of issues. Competing Needs

When the fathers talk about providing for their families, they tap into a number of discourses that are related to their identities as fathers, husbands, and moral beings. For example, Art describes how his battles with his wife over money now extend to his teenage daughters: And she fills my kids' heads with all kinds of things, that your father did this, and your father did that, and your father should buy you this, and he should buy you that. If he doesn't buy it for you he just shows you that he doesn't love you. So I wind up with this constant war - 'No, I can't afford the twenty-five-dollar track pants this weekend.' 'If you love me, you would do it.' And yes, part of that is teenage hormones but what they're doing, especially the older one, is the same thing that their mother did to me.

Loving the children, to them, means spending money on them. Caring, to them, means being a good provider. To Art, this feels like the marital relationship. Other examples focus on his responsibility as a provider:

112 'Deadbeat Dads' I moved out of the house in May. I paid every bill on the house: the taxes, the maintenance, the insurance, - every food bill, every car expense. Every nickel that had to be paid while they still lived in the house until the end of June, I paid, OK? My intention is not to shirk my responsibility of paying support. The problem is that she feels that it should be an amount that she decides! Regardless of how much I make!! And it doesn't matter how much it is. It could be ordered at nine thousand dollars a month. She still would not be happy ... She will never be happy. It doesn't matter how much it is. Art tries to make a logical presentation of himself as a responsible provider in light of his default status. Two things get in the way of his ability to provide at the level demanded. One is that provision will never be defined as adequate as long as his wife does the defining. The second is his inability to earn enough income. This was true in the marriage and is aggravated now because, in his own household, he has needs separate from theirs. 'Fathers have needs too, you know!' This declaration on behalf of fathers is a self-defence for Art, not only as an individual but also as a category of person. The theme of competing needs is especially strong in Randy's interview; however, in his case it is once again tied to the concept of reciprocity and fairness. Well, there's two major factors here. One is access and one is support ... And I've always paid my support but I'm not getting any access ... So I feel like I'm drifting away from my child even though I made all these decisions to make it very easy to continue a relationship for my ... with my daughter. Q. So it sounds like you feel it's not fair. A. It's not fair at all. It's not fair to the child either... I've had very few holidays. I'm just paying and working and that's it. There has to be some sort of reward here ... I would support [the child] forever ... But I'm not going to support her if Mommy's going to make rash decisions [that are] not in the best interest of the child ... [My former partner]'s already told me, she has to do this for herself. She's number one, as she said. She told me that to my face. That means the child is not number one. Your child should be number one. Q. OK. So... if [former partner's saying the child's not number one - and if you stop paying support and then she's no longer number one for you,

The Fathers' Perspective 113 what happens? I'm just wondering. You obviously care very much about your child. I'm trying to understand how you get from here to there. You care about what happens to this child. If she's with her mother in [the city], and you're not paying support, you worry about what will happen to her then. A. Uh-huh. Q. So then, what happened? There's a gap there? A. Well, the only chance I have of achieving custody of my child is that if [ex-partner] doesn't get support she has to get off her butt and get a job. We'll both be in the same situation for time restrictions on taking care of [the child]. In that case I maybe have a better argument on my side for gaining custody. So I basically cut my own throat at this point by giving her that much support. She can sit at home and sunbathe and be around for [the child] all the time. I can't. Q. So, cutting back on the support or eliminating the support in a sense would force her hand. A. It would force [the ex-partner] to grow up and have to get a job. Q. So do you think about withholding support in order to get back some of the control or to get some ... A. No! Q.... bargaining power? A. That's not why. If I discontinue the support it would be because she was going to [the city]. And I would think that that was a breach of the contract. Q. Alright. So, 'You're breaching the contract, then I don't have to fulfil my part...' A. That's right. Q. And does that mean spousal support only, or the child support as well? A. Spousal support. If I don't have access, child support also. In these examples we find a complex mix of issues and discourses. A 'good parent' is constructed in terms of the 'best interests of the child/ and the best interests of the child are constructed in terms of selfless caring. Yet the separation process reframes the parent-child relationship in contractual terms, so that the issue becomes one of justice instead of the children's well-being. The interpersonal dynamic in the foreground switches from the parental to the spousal one. Randy's need for reciprocity and some sign of being valued threatens to take precedence over his caring for his daughter.

114 'Deadbeat Dads' Gary explains that when he first left his family, he felt guilty about his wife and children's pain and therefore was 'generous' with support in the initial agreement. Besides, he 'could afford to be generous/ because business had been good the previous year and he was in the middle of a 'tax holiday' after joining a new partnership. Later, as income and guilt both diminished, he found himself unable to keep up with the court-ordered payments. He feels that the court expects too much from him and not enough from his wife, who is not earning any income. 'I'm being beaten up and she's doing nothing.' The fathers' sense of competition focuses on a struggle for recognition and consideration. The issue of needs and means is supported by the discourse of equality: the fathers reject the idea of 'women and children first.' We see themes and discourses shifting back and forth, slipping in and out, at times making us wonder whether the father hears himself talking. What is consistently absent - except in Gary's case - is any acknowledgment that there are differences in earning power between themselves and their ex-partners, who were at home with the children or working part-time throughout the marriage. As well, none of the fathers express concern about the effect on children of having a single parent who works full-time. It is perhaps less surprising that they don't consider how difficult it is to be a full-time single parent who works. Explaining Non-payment of Support Donald accounts for non-payment of support by the kind of fathers 'you read about in the paper every day' by explaining that the courts fail to recognize fathers' needs, set support too high, and bring fathers to 'the verge of financial ruin': And it's no wonder! Clearly you have to look at a situation where now the male has left the matrimonial home, has a responsibility to his children. I'm going to say less so to the wife, only because in the eyes of the court, she does have to become self-sufficient. Whether she does or not is irrelevant, but that's the premise. You also have to maintain your own residence, you know?

In Donald's view, the courts share responsibility for non-payment of support with lawyers and with the women. He declares himself completely unsympathetic to women who do not receive support.

The Fathers' Perspective 115 They have caused their own problems. They've gone to lawyers, they've made false accusations to lawyers, who pass the misinformation on to judges, who accept it and make punitive orders.

Neil is asked what he would think of a father who stopped payments in circumstances like his own (i.e., no contact for a prolonged period): My feeling about that would be they let their anger get in the way. That's just based on ray feelings. Q. Is that a position that makes any sense to you? A. Sure.

All the broken marriages in the sample were traditional ones, in the sense that the father acted as primary financial provider. This was true even in the two cases where the wife worked during the marriage. All the fathers accepted the role of primary breadwinner during the marriage; usually, they also accepted supporting a wholly dependent spouse. Since separation, the meaning of father as provider has changed for all the fathers, but the nature of the changes is not consistent. Each father has come to assume that a divorced custodial mother is no longer entitled to be a stay-at-home parent. They never address the fact that being a primary caregiver is more, not less, demanding after separation. After separation, the fathers focus on mothers' legal or moral obligations to contribute to the support of their children or themselves. Most of them also emphasize the practical difficulties of trying to support a wife and children when two households must be maintained with the same income previously used to maintain one. In every case where the issue is not enough money, the problem is posed in terms of competing needs. When the fathers talk about their own needs, the needs of the children tend to disappear from their talk; yet they do not present themselves as uncaring or irresponsible when this happens. Only the father who has custody of both children and is himself a support recipient is able to hold his and the children's needs in view and acknowledge the contradictions without any distress. Each father has a different take on his role as material provider. The fathers' constructions of the provider role include more than just talk of work and money; they are also shaped by discourses of equality, relationship, and morality, and are closely associated with the spousal relationship. Discourse about the child's 'best interests' is rarely

116 'Deadbeat Dads' resorted to and tends to be restricted to contexts where contact, not just material support, is ending. There are indications that the withholding of support may express anger, or a desire to regain control, or resistance to the perception that one is expected to sacrifice oneself for others. Sometimes these expressions are directed not only at the former spouse but also at judges and lawyers. With several fathers, the roots of the current conflict over support can be traced back to the troubles that, from the father's perspective, plagued the marriage. Here, money is intertwined with relationship difficulties and unmet expectations. All the fathers present a puzzling ingenuousness regarding their expectations of postseparation family life. Each talks as if he believed that the transition from intact family to separation and divided family living would be pain-free and characterized by cooperative relations, and would allow him to 'move on' in whatever way he had hoped. Those fathers who recognized that their parenting had been less than optimal during the marriage seemed to anticipate that they would become better fathers once separated. The one father who claims to have achieved this improvement (Donald) still describes a quite marginal relationship with his children. For the others, separation brought alienation from the children, loss of contact and 'input/ and emotional struggles with the ex-spouse, who typically was portrayed as angry, irrational, vengeful, and controlling. Gary traces his former wife's current financial dependence back to his disappointment in her refusal to work outside the home in order to broaden herself. Art establishes how, from the beginning, nothing he did seemed to satisfy his wife; no matter how hard he worked to provide what she wanted, she always wanted more. Randy tells how his partner controlled him when she was pregnant by threatening to prevent him from seeing his child if he ever left her. Since separation, he has tried to maintain control through the purse strings. Every father except Donald reports actual or threatened interference with his relationship with the children. Ironically, Donald's former wife is the most cooperative, yet it is Donald who demonstrates the most limited commitment of all the fathers; his story also makes it clear that fatherhood is a secondary attachment for him, not a primary one. He talks at length about why he left his wife for another woman: when she became a mother, he lost his central role in the household and felt sexually and emotionally neglected. He identified himself from the start as more a lover than a parent, and he still carries this identity. All the fathers endorse the principle of responsibility for their chil-

The Fathers' Perspective 117 dren's material welfare, yet they resist the perception that they are expected to bear sole responsibility. (This perception is inaccurate in the case of Donald and Art, whose former wives are caregiver parents and work part-time. Donald's wife has two part-time jobs.) It is here that the discourse of equality is introduced. What is especially striking is that fathers who describe themselves as willing to be sole providers during the marriage are not willing to continue in that role once the reciprocity of marriage ends. Donald describes himself as having been a willing breadwinner in the early days of the marriage. He was raised in what he portrays as a patriarchal household, in 'old-fashioned ways.' His mother always had dinner on the table when his father returned from work; she doted on her sons. Donald was Very happy' to have his wife stay at home, provided she demonstrated appreciation (verbal and sexual) for him as the provider. When her attention turned to the children, he felt unappreciated and turned to another woman. After he left home, he expected his wife to be a breadwinner, too. Art describes years of working hard - even changing to a higherincome occupation - in his efforts to meet his wife's expectations of him as a provider. Since the divorce, he has concluded that there is no way to meet her always excessive expectations, and he is unwilling to have her as a dependant. Randy was willing to continue being the sole breadwinner as long as he was able to maintain the semblance of a cooperative family living in two homes. Gary, on the other hand, always encouraged his wife to go back to work once the children were no longer little. This wasn't because they needed the income; rather, he was worried that she had stopped growing as a person and would be an unsatisfying partner once the children were no longer the focus of their existence. He grants that it is legitimate to compensate a woman for the financial setback caused by full-time childrearing, but he rejects the notion that he owes his wife 'a pension for life.' He describes how she filled the gap when he could not be present for school concerts or daily activities because of the travel his career demanded. He had clearly grown accustomed to her serving as the mediator of his relationship with their children. It is her refusal to continue in this role that particularly angers him. Husbands as Bad Guys

When Gary's expectation that his relationship with the children would continue with his wife's support was shattered and the children grew

118 'Deadbeat Dads' distant and critical, he experienced a painful and unanticipated loss. When he could not fulfil the dream of sending his son to an American college, his image of himself as a provider of opportunities for his children - established when they were little - was also shattered. Finally, when he was unable, as he claims, to pay the support ordered by the court, and was criticized by the court and by friends and family, his image of himself as a 'good person' was severely shaken. He gives this summation of how it felt to be at his court hearing: 'The judge just doesn't wanna listen. And it starts: "well, maybe these people are all right... Maybe I really am a creep, you know? And a terrible supporter and father."' Echoing this sentiment, Keith discusses his anxiety about having to return to court, even though he is reasonably certain the matter with FSP will be easily settled in his favour: Because I know the power they have! And if I say the wrong thing, they're going to judge me. It's their job to judge people. It's disgusting, but... Q. You mean the judges? A. Yeah, the whole system judges you. Q. So you don't just mean the judges? A. The whole system. The whole legal system is making judgments about you when they don't know you. And that makes me mad too. Q. How do you think you were judged? A. Well, first of all, that I left. So I'm the bad guy. That's a moral judgment that they're putting into legal terms. I'm the deserter! Bullshit! I didn't want to desert my son. I had no idea it was going happen like that.

Keith's perception that the system turns fathers, especially 'deserters' and men in arrears, into bad guys emerges again when he talks about his difficulties with FSP. He describes how he fell into arrears because he was waiting for a cue from FSP that never came to resume payments that they themselves had previously suspended. 'See, I think the philosophy is almost, "We want to catch you being a bad guy."' Donald bluntly declares that he was treated as 'scum' by the judges he encountered - presumably because he was perceived as having deserted his wife and children: Q. How did they make you feel like scum? A. Just strictly by the order they granted - that they put upon you.

The Fathers' Perspective 119 Randy says he was surprised to discover that the men he met at the single fathers' group did not fit his preconception of dissolute bachelor fathers: They don't seem to be bad people. They're not misfits and negligent people you read about in the paper. They're still making their payments. They're living in a spare room in their parents' basement. They're not drug addicts Q. Where do you suppose 'the guys you read about in the paper' go? Like, where are they? A. I dunno. I dunno.

The preoccupation with moral identities emerges to a large extent from the experience of being judged. Donald and Art perceive that they have been judged by the courts as persons and have been found wanting. Gary also refers to being judged by others as a 'terrible person.' Neil claims that the judge, the police, the representative of the Official Guardian, the children's school principal, and even his own lawyer judged him to be 'strident, neurotic ... controlling' whenever he insisted that his wife's plan was to separate him from his children. Randy himself had embraced a popular negative stereotype about single fathers. His relief that single fathers do not all fit the construction encountered in the media suggests what the construction is from which he wants to distance himself in order to avoid identifying himself as a 'bad guy.' Morris, himself a support recipient rather than a payer, still puts himself in the shoes of a single father with a limited income who is obliged to pay support and incur access costs as well. He describes the dilemma of a parent faced with personal sacrifices, such as liquidating assets: You're asking a lot. In emotional terms you may be confronting a guy who really does want to see his kids. And you say, 'Give up these things to pay the support.' He'd say, 'Well, I'd rather have the access than pay the support. I'd rather have the access that the car allows me to have.' So it's very tough. It's a very, very difficult situation.

In this excerpt the tension among relationship, morality, and finance emerges sharply. (This was precisely the dilemma Morris faced at the time of separation, when he believed his wife would obtain custody.)

120 'Deadbeat Dads' Here, access and support are constructed not as reciprocal, but rather as mutually exclusive. Morris's way of resolving this dilemma was to get custody himself. Citizens An unanticipated finding was that every father presents a social identity as a citizen. This identity emerged in virtually every interview. The identity of citizen encompasses one's rights and obligations as a member of society, and one's relationship to the state. Because a father's performance as provider is subject to public scrutiny and institutional judgment, the moral aspect of the provider role serves as a bridge from the private to the public domain. The identities of husband/provider and father focus on the intimate relationships within the family; in contrast, the social position of citizen centres on one's standing in the community. Every father talks about how some flaw in the system has contributed to his loss of status or rights. Some of their stories are recounted here. Randy says that in the midst of his present emotional crisis, T have to keep a focus on my practice. My staff has to not think that I'm losing it... My patients can't think that I'm losing it.' Describing a recent altercation with his 'ex' in her driveway (with the child present), Randy displays his concern about the consequences of the conflict between them: And what would have happened if I said boo, and she slipped on my truck? This is a person who's already threatened to call the police. She knows the rules in and out. How would that have looked on me if the police came and I was in her driveway and she had a bruise on her elbow? What happens to my life? I know right there, I won't see my daughter ever again. And I think you know that too. My reputation would be shot. My practice would be shot.

He talks at length about his disillusionment with the justice system, which he perceives has failed to protect his rights as he had expected it would. He recalls an earlier experience with civil court where he lost his case against a dishonest contractor because the judge just 'played with his pencil,' showed no interest in the facts of the case, and didn't know the relevant legislation very well. Donald also complains about his treatment as a citizen by the justice system: "The idea of a democratic justice system is that everyone is

The Fathers' Perspective 121 dealt with fairly. Well, there's no such thing as fairness!' He calls the system 'archaic': '[It] doesn't serve the needs of the people it's supposed to, and who need it!' He compares his treatment to that of serial rapist and murderer Paul Bernardo, whose infamous trial was underway at the time of the interview. He claims that Bernardo was treated fairly, while he was not: I'd like to think that I'm a law-abiding citizen, and if I come to court filing a document that says that's what I make, I think you should believe it! OK? As opposed to believing when someone says that he's got a safety deposit box filled with cash, and makes over $100,000 a year. Well, she says that, and I say this. There's a pretty big discrepancy there.

Art strongly criticizes the adversarial justice system and makes a strong plea in favour of mediation, though he concedes that when people are as unreasonable as he claims his wife is, even mediation may not succeed. He then talks about how he had never been in a court before, 'not even for a parking ticket.' Before the separation, his only encounter with the court system had been as a witness, and even then he did not have to testify. Echoing Donald and Neil, he claims he has always been a 'law-abiding person.' Asked what effect his involvement with the court system has had on him, he says, 'Back then, I thought the system worked!' When asked what he thinks now, his response is an expansive, contemptuous shrug. Elsewhere, he emphasizes his honesty and openness in making his financial disclosures during examinations for discovery. Gary claims that he was treated punitively by a judge who had been on the same bench for so long that his professional distance from the lawyers appearing before him had been compromised. According to Gary, the judge was 'too palsy-walsy' with the lawyer who represented Gary's wife, and 'got a bee in his bonnet' about Gary because of stories he probably heard about him being 'a homewrecker ... a fat cat lawyer who put his wife on the street/ Gary believes the judge did not 'follow the rules' in applying the law to his case because he had the impression that Gary is immoral: T'm concerned that judges have lost their independence. I'm saying the law's inconsistent. You should be making this more objective than subjective.' Accordingly, Gary preferred an open trial to settling matters in chambers because an open process was likelier to ensure fairness. He worries that the less public process bypasses issues of accountability.

122 'Deadbeat Dads' He questions the lack of due process in the actions taken by FSP prior to a default hearing in court. Gary also resents being pursued aggressively by FSP when he is paying a large sum monthly. Others who pay nothing are often not bothered. 'Why are they coming after a guy like me?' he asks. 'Here's a guy who's paying $6,000 a month and who's considered a deadbeat. I'm lumped in with everyone else. There's no distinction ... I'm a professional with a good reputation and I've been turned into a deadbeat.' He is worried about his reputation in the community. 'I really don't want to breach this judge's order any more than I have to. After all, I am an officer of the court. And how does it look?' His logic is this: The judge's perception of him as a bad husband and 'terrible supporter' led to personal judgment of him as a bad person, which led to public treatment of him that is unfair and does not respect his rights. His personal identity and social status in the community have thus been diminished; he now perceives himself as having been transformed from respected professional to bad husband to 'creep' and 'deadbeat.' Keith also worries about due process. He refers to the 'hallway justice' he experienced in provincial family court, where decisions were hastily made by lawyers and social workers, whose recommendations the judge accepted without hearing the facts of the case. In this process he perceives a lack of concern for individuals and a dangerous lack of accountability. In his description of FSP's contact with payers, Keith seems to be saying that he was treated as inconsequential at best, a "bad guy' at worst. They neither talked to him nor listened to him. His frustration is palpable: 'You can't even phone [FSP]! You can't phone them! I tried\ You get a tape recording. They will not talk about your case. When you do get an agent, he's some guy way off somewhere. He doesn't know about the case. And all you get is correspondence! Like, "Come to court."' Keith also talks about being especially vulnerable within the judicial system because he is 'low class.' He believes that if he had money, 'it would have been totally different.' He could have hired a better lawyer and fought sole maternal custody. He might have been able to stop his wife from removing the boy to another town. Neil contrasts his own approach to professional practice with that of the lawyer who billed him for work Neil had not authorized him to perform: 'When / make a mistake, I eat it.' Even so, he chose to pay the lawyer: 'I didn't know what else to do! I want my credit rating, I don't

The Fathers' Perspective 123 want any more court action, [laughs] You know? I guess I was kind of afraid.' Although being 'dis-credited' is a substantive outcome, the discrediting effect of being perceived and treated as a dishonourable/ irresponsible person by an institutional authority seems to be almost motivation enough for Neil. Morris captures the public perception that the other fathers claim they have encountered when he characterizes defaulters who 'can afford to pay and don't' as social pariahs: You decided to become a father. When you decided to divorce your wife that was completely independent. You can't decide not to be a father. So, contribute something!... Living in this society, we support our children. If you don't want to live in this society you can leave the country. If anybody else will let you in! We won't.

In other words, supporting one's children is not only a parent's personal responsibility, but an obligation to society in general. Parents who fail to fulfil that obligation forfeit their right to good standing in society. All of the fathers make a point of presenting themselves as good citizens and worthy members of society. They do this either directly or by talking about challenges to their honesty and decency that they perceive to be unfair. This self-presentation is related to encounters with a system that they now view at best as unsupportive or incompetent, and at worst as depersonalizing, devaluing, and criminalizing. Each father's relationship to the justice system and to institutional authority in general has been altered by his encounters with the divorce system. The way they see it, the system has too many flaws to protect them and (in some cases) their children. In this way it has failed to meet their expectations. All the fathers perceive that they have been the victims of unfairness or incompetence, and sometimes of outright hostility on the part of a judge, lawyer, or other individual. They are highly cynical about the system and have lost their faith in it and their esteem for it. Art, Neil, and Randy all say that until their experiences with separation, they had an almost naive trust in the justice system. Even Gary talks about his abiding faith in 'the law' (as opposed to the judges who interpret it or some of the lawyers who manage the procedures). They question the system's adversarial nature; all of them are strong advocates for mediation. Their faith in mediation is not unlike the faith they

124 'Deadbeat Dads' once had in the judicial system (i.e., that it would be 'fair'). In each case, this corresponds (probably not coincidentally) to the father's belief that his own interests would be better protected. The theme which emerges most strikingly is that of justice, constructed in a discourse of fairness and rights. The emphasis is on distinguishing 'good' citizens from 'bad' ones so that individuals who have met their obligations are not criminalized along with those who have not. The fathers' preoccupation with their public identity as social actors was an unexpected finding. It stems from the men's behaviour as fathers and husbands, but it is also about behaviour vis-a-vis institutional authority. This identity takes a father beyond the realm of his relationship with his spouse and his children, and beyond his circle of friends, to those with whom he works, does business, and has social encounters, and to those state representatives with whom he deals in matters of family law. Behaviour that was once a private marital and family matter is now publicly judged. An order to pay support signifies the court's power to label and punish. Fathers perceive justice as having been denied when the obligation to pay support is not coupled with satisfactory custody and/or access arrangements. When a father invokes his status and rights as a deserving citizen, this represents resistance to the perception that he is an undeserving citizen who need not be treated justly. The identity of 'bad guy' is rejected, and the consequences of this social positioning are bitterly resented. There is an interesting contradiction in the solutions proposed by the fathers. All want to see more fairness and objectivity in the system; at the same time, most also want a more personalized, problem-solving approach that takes the specific circumstances into account. They complain about the 'legalistic/ 'adversarial/ and bureaucratic nature of the system, in which neither their own nor their children's best interests are ever really known before decisions are made. Randy is the obvious exception to this: He believes in the power of the legal contract to regulate social behaviour and keep everything fair. If the contract is respected, and the legal principles are followed, the outcome will be as it should be. It is not coincidental that Randy is the only father in the sample whose original agreement was mediated without the involvement of opposing lawyers. He was satisfied with the original agreement, and all he asks is that it be implemented. However, he has found that access is in fact not easy to enforce. Complaints about being silenced, ignored, or disbelieved, or simply not being considered in the context of the particular circumstances,

The Fathers' Perspective 125 express a sense of depersonalization or negation, to which the fathers react strongly. The construct of being judged without being 'known' or, worse, of being misunderstood, conveys a sense of being disregarded in a way that effaces identity. The ultimate statement of this comes from Gary when he tells how his bank accounts and credit and bank cards have been 'kind of frozen and locked out': 'My girlfriend, my mother, and even my secretary all say to me, "How can you manage to live7. How can you even have some kind of a personality with all this stuff?'" He goes on to say he has contemplated leaving the country: 'Who cares about me? My kids do, but they have their own lives.' However, he has decided to stay and is losing his fear of the consequences: "The more you're pushed to the wall, the less you feel you have to lose ... [The judge's] decision was like an anesthetic ... it's like you died once and now you're resurrected and can't be killed again.' A sense of resistance emerges here. Feeling trapped in a no-win situation with respect to money, the court, and his relationship with his children, he has taken up a position that counteracts the powerlessness he otherwise finds overwhelming. Victims All the fathers have experienced loss and disempowerment. They feel they have been treated with bias and injustice and that the system has criminalized and depersonalized them. As a result, all of them now view themselves and/or their children as victims. The only exception is Morris, who expresses grave concern about the fate of children under the current system, and who pre-empted his own feared victimization by gaining custody. The fathers' presentation of themselves as helpless, disempowered, and victimized is especially curious when one considers that all of them are White and Canadian born and that only one is below the middle class. In the section on husbands and providers, I looked at how the fathers talk of feeling controlled by their former wives, especially in relation to access and support. In this section I focus mainly on the fathers' perception that the system has supported the mothers' control and thereby further disempowered them. Keith actually uses the term Victim' when referring to the outcomes for his child: 'It all comes down to my son is the victim of it all. He's a victim of the adults fighting - he's a victim of the stupid court system.' He claims that he is still 'intimidated' by the power of the system

126 'Deadbeat Dads' (including FSP), and mistrustful, especially since he perceives the system as hostile to fathers: 'Because I know the power they have! If I say the wrong thing, they're going to judge me. It's their job to judge people.' Keith also feels 'screwed' by his wife, not financially but rather in terms of his relationship with his son. He describes her as irrational, selfish, irresponsible, inflexible, and vengeful, and points out that it was the court's bias in favour of mothers, 'no matter how unfit she is/ that made it possible for his drug-addicted wife to keep his son from him. Donald repeats the accusation that the system is biased against men. He claims that his own lawyer warned him he'd get 'cremated [because] you're not wearing a skirt.' Neil takes a similar position, arguing that the court's accession to all his wife's demands and its lack of consideration for him made it possible for her to eventually disappear with his children: 'The belief that the law is protecting children is fundamentally wrong ... And I'm going to say something that I know is controversial. I lay this at the foot of the woman's movement.' Neil sees himself and his children as victimized by a system that is biased in favour of women. Moreover, he claims he was personally victimized by an unreasonable judge with a reputation for incompetence. As for the two lawyers, Neil perceives that he depended on them for protection, which they failed to provide: 'I didn't know anything about the law, OK? It's a black box. I'm just a simple health professional. I understand how bodies work, and I'll talk to you for six weeks on anything on how the body works. But I don't know about the law.' Toward the close of the interview, after I comment on the picture of two little girls on his desk, Neil says there is a 'wall full of photographs' in his home showing his daughters as they were when he last saw them: I feel so powerless. Q. That's the first time you've actually used the word 'powerless.' A. Yes. I do feel powerless. Total, abject powerlessness. Q. That's what I keep hearing over and over again. A. Yes, yes. Absolutely. You've heard the expression, The system treats fathers like wallets.' It used to be biased toward men. And that's not right. And now it's biased toward women and that isn't right. Now it's toward the custodial parent. That isn't right either.

The Fathers' Perspective 127 Gary's sense of being powerless stems from the system, which he perceives as unpredictable and free of accountability. Like Randy, he feels he has no control over the outcome. Art explains that he and his wife have fallen into 'a legal black hole,' from which they have been unable to extricate themselves due to the judge's incompetence, the system's inefficiency, and the venality of lawyers. Art makes the point that if those in the system can't figure out what to do, how can he and his wife be expected to manage a trial without legal counsel? To make matters worse, his wife has reached the limit of her Legal Aid. Although Art is eligible for it, his lawyer refuses to undertake Legal Aid work because of the complications involved. Randy talks about feeling helpless and controlled by others who don't necessarily have his best interests at heart: Well I don't know if [my lawyer] just didn't do the initial agreement properly or was trying to just shuffle it off to the side or what. I've got no idea. I'm not a lawyer, I'm a dentist. It took me four years to learn how to drill little holes in little teeth. And I'm talking to all these people who can determine your life. I'm thinking, 'Where's the balance here?'

That the fathers present themselves as disempowered and victimized is important for the subjective experience it suggests; it also underlines that they perceive themselves as passive players in the custody/access game. The fathers (with the exception of Morris) tend to present themselves, in all aspects, as reactive rather than proactive. Having taken the position of victim, they can no longer see themselves as agents on their own behalf or as the initiators of behaviour that may have affected others. The only exception to this relates to the money owed for support, which they see as a vehicle for regaining some control, or at least for resisting control by the former spouse and/or the system. The dual emphasis on victimization by the former spouse and by institutional representatives is consistent with findings in the literature and in my own earlier shady of how the wife and the system are conflated by fathers. Ironically, Art, Neil, Keith, and Donald all tell how they have managed to beat the system (or at least fend it off) by sticking to the letter of the law. Keith figures the 'loophole' in the system that keeps his payments low, while providing social assistance to his ex-wife, may actually have been put there so that fathers can express their caring and

128 'Deadbeat Dads' autonomy as parents through discretionary spending on their children. Donald explains how he beat the system by limiting his payments to exactly the maximum garnishable amount, knowing that the arrears would mount up but that FSP could not legally take any more from him. Neil, who exercises control in the reverse way (i.e., by paying support and maintaining his identity as a good father), maintains the identity of law-abiding citizen by being absolutely scrupulous about getting payments in on time and by notifying FSP in writing annually of what the cost-of-living increase will be unless he hears otherwise from them. In other words, he feels he is in control of 'the Plan' as long as he stays a step ahead of it. Art takes up the identity of a 'bankrupt/ declaring repeatedly that he is not in a legal position to meet his ex-wife's demands, or even those of the incompetent judge: 'Here I'm an undischarged bankrupt. He's demanding that I indemnify her to the bank for the bank loan, which I cannot legally do, because I'm an undischarged bankrupt. It would mean nothing! And it says right on the front page of the letter than I am an undischarged bankrupt! I'm broke!' It is significant that Art at first resisted this identity. He sought the advice of several professionals before conceding that bankruptcy was an advisable step, though a regrettable one. Now he adopts this identity avidly as a device of resistance. Randy tries to regain control by 'looking for black-and-white answers/ even though he realizes the system is anything but clear-cut. He is looking for certainty, for predictability of the kind that all the fathers claim is lacking in the system. As Gary puts it: '145 Queen, which is General Division [Court], is like the OK Corral... There is no consistency. There is no following the rules. It's a gambling casino.' This is an image of vulnerability in the midst of chaos, danger, and ill will, and it sums up the feelings of all the fathers except Morris. Summary The complex assortment of subjective positions discernible in the interviews with the fathers helps us understand how fathers are able to espouse one view, contradict it with another (or with their behaviour), and apparently not recognize the discrepancies. None of the fathers maintains a single position at all times; each moves in and out of different subjectivities, sometimes presenting two or more in tandem. Some have unexpected prominence; others seem less significant than was

The Fathers' Perspective 129 expected. At times these multiple identities, and fragments of identities, support one another; at times they seem incompatible or actually undermine one another. These contradictions show the tension among competing constructions of couples, families, fatherhood, and the role of the state in regulating certain aspects of the separated family. The central social identities, or subjectivities, explored in this chapter are fathers' presentation of themselves as fathers, as husbands/providers (breadwinners), as members of the community (i.e., 'citizens'), and as disempowered victims of laws and institutions. They talk about the unwanted identities that they perceive the justice system has imposed on them. They talk about identities that they value and that they perceive have been stripped from them. The fathers struggle inwardly to hold on to their preferred identities. They reject some identities outright, and adopt others. The dominant struggles around subjectivity focus on the following: • 'good' fathers versus 'bad' fathers • 'traditional' patriarchal marriage/family versus 'modern' marriage/ family • competing needs of family members (emotional and financial) • loss of status, control, and relationship, at both 'private' and 'public' levels • criminalization and depersonalization • vulnerability and helplessness in relation to the state and to the wife. These themes are related to competing subjectivities that are sites of resistance to the ways fathers are positioned by the state when parents separate. Resistance is expressed in a number of ways: • non-payment as legal strategy • 'No one should be controlling me ... I'm not less important than anyone else.' • rejection of the 'bad guy' or 'criminal' identity and/or holding on to a positive moral identity • 'This isn't fair.' • There isn't enough money.' As the fathers attempt to explain their perceived changes in subjective position, they look outside themselves for answers. One consistent reference point is the marriage and the wife. Former wives are por-

130 'Deadbeat Dads' trayed as angry, vengeful, self-centred, and therefore destructive to their husbands and children. In most cases they are also seen as unstable or emotionally troubled. A second external explanation is found in the justice system and the procedures that govern separation and divorce. The main complaints are these: • The law is biased. So are the institutions that favour mothers and disadvantage fathers. • The system treats all non-custodial fathers obliged to pay child support as if they were criminals. • The system is adversarial and pits former spouses against each other, promoting hostility instead of helping resolve issues for everyone's benefit. • The system and its procedures are depersonalizing, and this has substantive as well as subjective consequences. • The people who administer the justice system tend to be corrupt, incompetent, biased, or acting out of self-interest. The next two chapters will examine some of the ways that laws, policies, and institutional practices contribute to fathers' perceptions. The final chapter considers the ideological, economic, and social context in which these subjective constructions occur.

4

Looking at Legal Texts

This chapter examines how the statutes and case law relevant to custody, access, and support construct fathers. The purpose is to uncover how these texts fit into the relationship between fathers, institutions, and law as the separation/divorce process unfolds. The emphasis is on identifying the social identities made available to fathers through the constructions in these texts. I examine how separated and divorced men are constructed as parents, husbands, and members of society by the body of law represented in the sample of legal texts. Throughout this part of the analysis, the role of the state as it intervenes in the family is considered. The sample includes three types of texts: 1. The relevant statutes themselves, which are the expression of the provincial or federal legislature. This legislation includes the Divorce Act, 1968, and Divorce Act, 1985; the Ontario Family Law Act, the Ontario Children's Law Reform Act, and the Family Support Plan Act of Ontario; and Bill 124: An Act to amend the Children's Law Reform Act. 2. The relevant case law, based on published case law reports, which reflect how statutes have been applied to the facts and circumstances of individual cases. Case law decisions may pertain to motions (pretrial), trials, or appeals, and therefore involve different courts at different levels. Though 'higher' court decisions are considered binding on 'lower' courts, the converse does not hold; also, decisions in one court are not binding on courts at the same level. When a lower court judge finds distinguishing facts in a case, an applicable decision of the appel-

132 'Deadbeat Dads' late court is not necessarily binding. All decisions, at any level, become part of the body of law that will be considered in future cases.* 3. A selection of textual materials prepared by legal scholars for practitioners of the law. These include two widely recognized annotated editions of the Divorce Act and Ontario's Family Law Act, respectively, and legal analyses of custody, access and support enforcement prepared for students of the Ontario Bar Admissions Course, 1992.1 The Legal Construction by the State of Divorced Fathers2 When parents end a marriage, they lose some of their rights to determine the issues related to their children's welfare. This happens through regulation of custody determination, through arrangements for access and child and spousal support, and through enforcement of these arrangements. In its function as parens patriae, the law requires the state to withhold a divorce decree until 'reasonable arrangements' for the support of the children have been made.3 Parens patriae - literally 'father of the country' - refers to 'the sovereign power of guardianship' over the welfare of children, that is, to the state's obligation to protect the economic and physical well-being of children (Vayda and Satterfield, 1989: 84fn). The following two excerpts from case law decisions pertaining to s.ll(l)(b) of the Divorce Act 1985, illustrate different judicial positions regarding the state's role in support arrangements: Even in the absence of independent legal advice, where the parties understand the terms of a support agreement, and such agreement is not unconscionable, it should be respected by the court. (Fanning v. Fanning, 1989) (117) Under the Divorce Act, 1985, the court has an obligation to satisfy itself that reasonable arrangements for child support have been made. The reasonableness of arrangements must be determined in the context not just of the spouses but in all the circumstances which include such items as assistance from other family members or friends, social assistance, and other relevant circumstances. In such instances, the court should not simply 'rubber stamp' an application for a desk order divorce. (F. (R.D.) v. F. (S.L), 1987) (71) * All case law references and commentary are taken from MacDonald and Wilton (1992) and are followed by the page reference in that volume, except where direct legal citations appear.

Looking at Legal Texts 133 The same principle applies to any agreement regarding custody: It is the court's position that the agreements ... may well be a reflection of the thinking of the parties and to that end are instructive to the court in considering the issue of custody of the infant children, but that in no sense is the court bound by whatever the parties may have heretofore agreed to themselves when dealing with the custody of the infant children, (per Green Prov. J. in Henderson v. Henderson, 1977) (241-2) Where the custodial mother wished to relocate with her children to British Columbia for no particular reason, the court allowed the father's application for an order restraining the mother from removing the children from the jurisdiction. As the move would disrupt the children's lives and interfere with their relationship with their father and their family, it was clearly not in their best interests. (T. (K.A.) v. T.(J.), 1989) (246)

These examples illustrate attempts by the courts to balance the state's supervening legal function as parens patriae with respect for what is normally defined, in liberal ideology, as the private domain of the family. Although parents might expect the court to take over decisions affecting the children's welfare in a contested divorce case, the above rulings indicate that even when parents are in agreement and the proceedings are uncontested, the court has the responsibility of assessing the suitability of the agreement and of intervening accordingly. If parents do not seek a divorce, however, arrangements that might be considered unsatisfactory by a court remain private and therefore unchallenged. An additional and quite different justification for intervention is offered in the following case decision: The requirements of s. ll(l)(b) of the Divorce Act are entirely for the benefit of the children ... However, where the non-custodial parent can well afford to pay more, the burden should not be transferred to the state. (Simpson v. Simpson, 1987) (71)

A support agreement must meet not only the children's needs but also, to some extent, those of the state. In other words, the state is in several respects not a disinterested party. The issue of state financial support is added to the mix of competing considerations to be weighed by the court.

134 'Deadbeat Dads' Custody and Access The interpersonal relationship between separated fathers and their children is defined by the laws governing custody and access. Custody and access issues are dealt with under section 16 of the Divorce Act, 1985, and, where variations of custody and access orders are concerned, by section 17. The 1985 act brought two important changes: joint custody was introduced as an option available to the court, and it was established that custody would be determined solely on the basis of the child's 'best interests/ These and some other key principles (i.e., the principle of 'maximum contact' and the associated 'friendly parent rule/ the principle of gender equality, and the principle of separating access from support) shape how the court exercises its responsibility to protect the child on behalf of the state. Joint Custody MacDonald and Wilton (1992: 250) point out that the new Divorce Act does not make joint custody mandatory or presumptive. In fact, Canadian divorce law implicitly assumes that collaborative parenting is not the norm after separation. So except in the case of 'a limited category of separated parents' (Baker v. Baker, 1979),4 the major responsibility for care and upbringing of the children is assigned to one parent. This parent becomes known as the custodial parent, and is usually the parent with whom the children primarily reside. The other parent, who is called the non-custodial parent, is the one who has access to the children. Custody is defined in s. 2 of the Divorce Act, 1985, as including 'care upbringing and any other incident of custody.' Access is not defined specifically in either the 1968 or the current Act, but under the current legislation, would at least include the right of the spouse with access to obtain information about the health, education and welfare of the child: s.!6(5). The spouse with access may also request an order that he or she be notified of anticipated changes in the child's residence: s. 16(7) is viewed as 'contact' with the child, (s. 16(10) MacDonald and Wilton, 1991: 222)

It is significant that access is undefined in the Divorce Act. In uncontested cases, parents get to establish access according to what suits them and their children; in contested cases, access is determined by the judge. Formally, however, the role of the non-custodial father is limited

Looking at Legal Texts 135 to the right of access to the child and to specific kinds of information about the child. It is important to note that though the non-custodial or access parent has the right to information about these key areas, he does not retain the right to participate in making decisions about them. He 'is not entitled by the access order to make important decisions having a long-term effect on the child's life' (MacDonald and Wilton, 1991: 258, re: McCutcheon v. McCutcheon, 1982). The access parent is thus removed from a position of direct influence over the child's development and welfare. Section 20(5) of Ontario's Children's Law Reform Act establishes similar rights for the access parent: The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

The language of this section of the statute is interesting in several ways. First, the words 'same right as a parent' draw attention to this person as someone who does not have the status of parent. The reasoning behind this is that access may in fact be granted to someone who is not a parent (say, a grandparent); however, the inclusion of a parent with more distant relatives or even unrelated persons categorizes the non-custodial parent as a non-parent. The second interesting aspect of the language in section 20(5) of the Children's Law Reform Act relates to the term 'entitlement to access.' Though the Divorce Act refers to 'access,' section 16 does not use the words 'entitlement to access' or 'right to access.' This is the language of property relations (i.e., property is that to which one has the right or entitlement of access). This discourse accomplishes a shift away from the focus that the legislation intends to place on the best interests of the child, toward the rights of the parents as owners of the child. The application of the language of property rights to parent-child relationships (especially the terms custody and granting of access) sustains vestiges of patriarchal family relations, which compete with discourse about the child's welfare. Moreover, although the legislation uses terms such as granted and determined, in common legal parlance custody is talked about as being awarded. This suggests that there is a winner - and hence a loser - in each case, especially in contested cases. The child becomes a prize in the contest between the parents over rights to its ownership.

136 'Deadbeat Dads' The Best Interests of the Child Standard

A crucial change in the 1985 Divorce Act is the clear shift to the best interests standard in determining custody. In the previous act, the best interests of the child constituted the 'paramount' rather than the 'sole' consideration. (This change is mirrored in Ontario's Children's Law Reform Act.) The earlier act required the court to review 'the conduct of the parties and the condition, means and other circumstances of each of them'; in contrast, section 16(8) of the current legislation requires the court to consider 'only the best interests of the child/ However, the best interests are qualified in the same subsection by reference to 'the condition, means, needs and other circumstances of the child/ Section 16 of the Divorce Act does not offer a list of other 'factors' or 'circumstances' to be taken into account in applying the 'best interests' standard. Section 24(2) of Ontario's Children's Law Reform Act offers a statutory definition of the child's best interests; however, this list of factors 'is not exhaustive, nor is any one factor determinative/5 This vagueness in the statutes is intended to ensure flexibility so that judges may use their discretion in assessing each case individually. The point of the best interests test is that it must be applied on a case-by-case basis. Following is a sample of additional factors that have been considered in making an order for custody, pulled from the federal legislation and case law: • That the child 'should have as much contact with each spouse as is consistent with the best interests of the child/ (section 16(10)) • The sex, the age, and the environment of the child/ (Dykes v. Dykes, 1977) (229) • 'The child's psychological needs' (deemed in some cases to be 'more important than financial concerns/ (K.(M.M.) v. K.(U.), 1990) (231) • The parent with whom the child 'will be happier and most likely to attain her highest potential as a person/ (Re (G.), 1973) (231) • The claims of affection of the respective parents and the social and moral upbringing of the child/ (Re Peddle, 1975) (232) • Material conditions such as 'a beautiful home,... plenty of money and ... the services of a full-time housekeeper/ (Grant v. Grant, 1975) (240) • The child's development, and the engendered sense of creativity and fulfillment/ rather than the child's 'happiness/ (Barca v. Barca, 1972) (232) This list indicates not only the uniqueness of each case that comes before the judges, but also the wide range of individual positions that

Looking at Legal Texts 137 judges have the discretion to take in determining the best interests of the child. The following decision expresses the value our system places on the flexibility of judges to rule on each set of circumstances separately, without binding presumptions: But Parliament did not entrust the court with the best interests of most children; it entrusted the court with the best interests of the particular child whose custody arrangements fall to be determined. Each child is unique, as is its relationship with parents, siblings, friends and community. Any rule of law which diminishes the capacity of the court to safeguard the best interests of each child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry into the needs, means, condition and other circumstances of 'the child' whose best interests the court is charged with determining, (per McLachlin J. in Goertz v. Gordon, 1986]

One factor excluded from the 1985 Divorce Act as a consideration in custody decisions is past conduct, except as it may bear on the individual's 'ability to act as a parent/ The removal of past conduct as a factor for determining the child's best interests has had two main results. First, it has rendered the parental role separable from the marital one (i.e., an individual's behaviour as a spouse no longer affects consideration of him or her as a parent). Second, when an individual's suitability as custodial parent is being considered, the emphasis has shifted away from previous conduct toward likely future functioning as a parent. This is perplexing for judges, given the findings in the literature about the unpredictability of fathering behaviour following separation. Judge Norris Weisman has observed that the best interests of the child standard is a 'person-oriented rule' rather than an 'act-oriented rule/ The primacy it has in the 1985 Act 'requires that the court evaluate the litigants as unique social beings and predict the future outcome of their interdependent personal relationships' (36 R.F.L. [3dl 35 at 66). Under such a mandate, the very nature of court decisions is quite different from before. Specifically, those decisions are much more complex. In Judge Weisman's opinion, these are not the kinds of decisions for which judges are best equipped. Gender Neutrality Consistent with the trend toward gender equality in family law, pre-

138 'Deadbeat Dads' sumptions about the suitability of mothers as custodial parents for young children (under the doctrine of tender years) have been displaced by the best interests standard; so in theory, every father and mother is now entitled to equal consideration when it is being decided who will be the most suitable custodial parent. The courts have been careful to invoke the ideology of gender neutrality when evaluating parents. Even so, mothers continue to be far more likely than fathers to become custodial parents (Crean, 1988; Vayda and Satterfield, 1988). Following are several examples of how the issue is expressed in case law: The 'tender years' principle should not be given much weight in custody applications, considering the substantial changes in society's attitude toward the ideal family situation. For many families, the idea that a mother is intrinsically better suited to care for a young child is anathema. In light of changing attitudes, each custody case must be decided on its own merits. (R. v. R., 1983) (232) It is now well established that there is equality in the claims of the father and mother as to the custody of their infants. There is no principle of law that the mother is prima facie entitled to the custody of children of tender years. This is particularly so in the case where both parents work. The rule that children of tender years belong with their mother is a rule of human sense rather than a rule of law. It is only one factor to be considered with all the circumstances. (Desilets v. Desilets, 1975) (233) In Donnelly v. Donnelly (1988), the 'tender years' doctrine was applied in awarding custody of the parties' 4 year-old daughter to the mother. (MacDonald and Wilton, 1991: 232) Neither the 'tender years' doctrine nor the argument that the needs of female children are best met by their mother are of any validity today. (Williams v. Williams, 1989) (232)

In an earlier era, the tender years principle guided decisions toward maternal preference. The above examples indicate considerable ambivalence about this in current case law. The discourse of equality in the courts attempts to neutralize the reality that mothers are most often the primary caretakers, in order to minimize the appearance of favouring mothers as custodial parents. In theory, parenting is no longer consid-

Looking at Legal Texts 139 ered a necessarily gendered activity. In principle, the emphasis on judging each case individually allows each father an equal opportunity to make a case for himself. The variations in how the above decisions are formulated reflect the reality that in spite of the law's position, ideology about families and parenting is not more uniform on the bench than it is in society as a whole. Separation of Access from Support

Once the father's rights have been removed and his normal, day-today contact with his child has been curtailed, his remaining role as the non-custodial parent is to demonstrate interest in his child by exercising access, or Visiting,' participating in activities and special events, and by paying child support. The functions of maintaining contact and supporting the child are separated in the legislation, handled separately by the court system, and followed up through different institutions. Support obligations are thus set apart from the interpersonal relationship of father and child. Access is not to be suspended simply because the non-custodial parent is delinquent in meeting support obligations. As the sole criterion on an access application is the best interests of the children, access and support should not be tied together. (H. (F.V.) v. O. (D.A.), 1988) (328) In theory, child maintenance should not be linked to any other form of relief but must stand alone and independent of all other rights and obligations vis-a-vis the parties. To permit even the slightest erosion of such principle is to create, potentially, a situation where the children of a marriage will suffer ... [I]t matters not, in my view, that the wife who has custody of the children can support them independent of any financial contribution from the husband. If he has been ordered to pay child maintenance, then under no circumstances should such be ordered withheld or rescinded because of interference with his access rights by the mother, (per MacDonald J. in Twaddle v. Twaddle, 1985)

The moral underpinnings of this separation of functions are clear. The child's right to support from the parent is independent of the right to see that parent. The imposition of the obligation to support does not confer on a parent the right to spend time with the child; nor does denial of the parent's right to see the child justify the withholding of

140 'Deadbeat Dads' support. Still, there are legal precedents, which are exceptional to the 'general rule,' indicating that a father who fails to fulfil the access and support functions may forfeit his rights to access altogether: ... the father, who had seen his child only on the date of its birth, was denied access on the hearing of the wife's divorce petition... Furthermore, the fact that the father had never contributed to the child's support, was a factor cited by the court in denying access. (Plume v. Plume, 1981) (263)

There is an implied assumption here that a father who doesn't pay doesn't deserve a relationship with the child. A contradiction is immediately apparent: if access to the parent is the right of the child, then the denial of access to the parent for negligent behaviour is problematic. In some instances, child support has been reduced or suspended in order to pressure a mother into cooperation who has been interfering inappropriately with access considered valuable to the child: It is the responsibility of this court to try and ensure that its orders are not thwarted by the parties to an action and the only effective method that I can use to have the access continued is to use the payment or nonpayment of maintenance as an inducement to the wife to assume the responsibility outlined above. I am therefore ordering that all maintenance payments set out in my original judgment will be suspended for such length of time that the husband fails to obtain access to the children. I am also changing the terms of access from the original order, (per Bowen J. in Tassou v. Tassou, 1976) As a general rule, the court should not link child support to access. A parent may not reduce or withhold child support because of access problems. The particular facts of the case, however, justified deviating from the rules regarding the apportionment of child-care costs and the method of payment. It would be unjust and contrary to public policy to allow custodial parents to frustrate access orders without making these parents account for their actions. (Welstead v. Bainbridge, 1994)

Judges are clearly uncomfortable making this link either way, but find themselves without other available means to enforce access or, conversely, to see the child supported. In Lee v. Lee (1990), a father's application to stop support until the mother assisted with access to the

Looking at Legal Texts

141

children was upheld. An appeal was subsequently allowed on the grounds that the trial judge erred in confusing access and support. J. McLeod's annotation to this case provides a discussion of the problem that influenced the trial judge: The reasons for judgment and conclusion reached in Lee v. Lee are technically sound and legally correct. However, are they realistic? Quite simply, the Court of Appeal refused to link access and child support and refused to reduce/suspend child support in the face of a consistent denial of access. Faced with similar applications to reduce or suspend child support, the courts have regularly held that support and access are separate obligations and neither is dependent on the other. However, there is no denying that the parents link the two issues. A parent may find it difficult to understand why it must honour its obligation while the other parent may openly flout the court order. Symmetry and mutuality of obligation and right are commonly held views. The reality is that access orders are not enforceable: Access and child support issues involve the adults as well as the children. Child support indirectly benefits the custodial parent and rightly should compensate for some of the child care burden assumed: Russo v. Russo (1988), 15 R.F.L. (3d) 243 (Ont. H.C.). It does not seem unreasonable that child support should somehow take into account 'fairness' between the adults so long as the child's reasonable needs are met. This is the analysis adopted by many courts in deciding whether to override the child support provisions of a settlement agreement: see Dickson v. Dickson ... So long as the children's needs will not suffer, a court should consider removing the child support burden in whole or part and shifting it to the custodial parent in the face of a consistent and willful refusal to facilitate access. If there is a reason to deny access, the custodial parent should be encouraged to let a court deal with the matter. Self help should be discouraged ... (Lee v. Lee, 1990) This commentary introduces a new line of logic: (a) in parents' minds support and access may be linked, and separation of them may work only in theory; (b) people tend to expect social arrangements that are 'fair,' in the sense of symmetrical; (c) the absence of effective ways

142 'Deadbeat Dads' to enforce access makes support and access arrangements inherently asymmetrical, or unfair; and (d) fairness may be achieved by revising the arrangements, if it can be done without harming the child. The unstated inference is that wnfairness will have to stand if the child might suffer. In another instance that linked access and support, a father assumed he was not obligated to pay because the child had been removed from the jurisdiction. He was distinguished from the father who deliberately withholds support on a retaliatory or strategic basis: A husband, who arbitrarily discontinued maintenance payments to his wife and children when she moved out of the province, thereby depriving him of his access rights, was held not to be in contempt where the court was satisfied that he discontinued his payments in the honest belief that he was justified in so doing and that the thought of contempt had not even entered his mind. (Pickard (Coffin) v. Coffin, 1980) (267)

This rather odd case applies the conception of access as the right of the parent, and accepts as reasonable the father's 'honest belief that the requirement to pay support is somehow tied to the availability of access. Sometimes the court itself withholds or reduces support for the purposes of leverage. In a 1986 case where a woman moved away with her child and refused to reveal to the man his child's whereabouts, the court reduced the monthly maintenance to $1.00 pending resolution of the access difficulties (Blackmore v. Blackmore, 1986). In a similar example, the court reinforced a father's perception that his obligation to pay support was nullified if he forfeited access: Where the parties had agreed after their divorce in 1974 that the wife would not enforce maintenance payments if the husband did not exercise his access rights, the court favourably entertained the husband's application to vary the decree and cancel all arrears in 1985. The husband had not been trying to avoid his legal obligations but rather legitimately believed that such obligations had ceased and that he was free to start a new family. (Remillard v. Remillard, 1986) (267)

The legal and institutional separation of support obligations from access rights is an attempt to prevent support from being constructed as an exchange for a proprietary right of access. It is meant to discour-

Looking at Legal Texts 143 age the perception that support is money paid for the privilege of access to the child, or, conversely, that access can be denied if money is not paid. The intention is to discourage fathers who have access difficulties from using those difficulties to justify nonpayment, and, conversely, to discourage mothers from withholding access from fathers who are not paying support. Unfortunately, this construction is at odds with the discourse of child as property, which as we have seen is also found in the law. Where there is a gap between the two discourses or between the legal construction of support and access as separate entities on the one hand, and the social reality of their connectedness on the other - judges find themselves compelled to intervene. Invariably, tension arises between the rights of the parent and the best interests of the child. Using the best interests standard, the deciding factor is always meant to be whether the child is likely to suffer as a result of linking access and support. The 'Friendly Parent' Rule

In interpreting section 16(10) of the Divorce Act - that is, in applying the principle of maintaining as much contact with each parent 'as is consistent with the best interests of the child' -judges have emphasized access as the 'benefit' and 'right' of the child rather than of the parent (MacDonald and Wilton, 1992: 259). This 'maximum contact' principle has given rise to the 'friendly parent' rule, which favours as custodial parent (when the two parents are 'otherwise equal') whichever parent is 'more willing to encourage access' (257). The 'friendly parent' rule recognizes the degree of control that the custodial parent is in a position to exercise over the children's relationship with the non-custodial parent. The noncustodial father then finds that his former wife is the mediator of his relationship with his children; she is the 'gatekeeper' on whose good will and cooperation he must depend. When the parents are unable to cooperate regarding access, the court will make an order that sets forth specific access times and conditions. Although this tends to be a more workable arrangement for many parents, it is another example of the state intervening to reorder family relationships. Enforcement

The state enforces support payments through a comprehensive range of mechanisms; in contrast, access for the non-custodial parent is virtu-

144 'Deadbeat Dads' ally unenforced. This is another example of the law's ambiguity regarding the father's role as an active parent. Attention is paid to the principle of financial support at the expense of the principle of continuing parent-child contact, and this tends to devalue the latter and undermine the principle of 'maximum contact.' When support is enforced but access is not, it is tantamount to emphasizing the father's obligations at a cost to his rights and those of his child. Under pressure from fathers' rights groups, in 1988 the Ontario government introduced Bill 124, An Act to amend the Children's Law Reform Act. The bill's main aim was to establish 'a speedy remedy for access difficulties.' The underlying principle of the motion was summarized in the explanatory notes as follows: 'Denial of access is wrongful unless it is justified by a legitimate reason. Criteria are provided to assist the court in determining whether a reason is legitimate.' The bill, which did not become law, inspired a tense debate about issues of access rights versus the rights of the custodial parent, and raised fears that angry fathers could harass custodial mothers in court. The difficulties of enforcing access are obvious. The discourse of T^est interests' and 'continuing family relationship' seems incompatible with the logic of 'rights' and 'enforcement.' How would enforcement be accomplished? Relying on the police to facilitate the emotional relationship between a father and his children strikes one as inappropriate, counterproductive, and unwieldy. And how could punishment possibly be meted out to the custodial parent for withholding access, without harming the child? Justice Weisman acknowledges this dilemma in his article on the difficulties related to access decisions: Traditional remedies for contempt of court, such as fines or probation orders, are blunt instruments and will not ensure future compliance in the majority of cases. The drastic remedies of incarcerating the custodial parent or transferring custody to the non-custodial parent are often threatened; but neither solution may be feasible or in the best interests of the child, and is therefore rarely used. Spousal support, if any, can be suspended for denial of access, but child support, which is much more frequently ordered, is usually required for the child's sustenance. How, then, should judges deal with denial of access after parental separation? When should access be ordered over the objections of the custodial parent? (Weisman, J.N., R.F.L. 36, [3d. ed] 35 at 41)

In addition, the principle of access as the right of the child ought to

Looking at Legal Texts 145 mean that access should be enforced when fathers fail to visit their children. This is logical; it is also unimaginable. No applicable model exists for regulating this complex emotional and psychological relationship. In contrast, an available model for enforcement of support payments has been adopted: the debtor-creditor relationship (Bennett, 1992). Child Support

The question of who should contribute how much to the financial support of children has long been debated in case law and policy. Under the Divorce Act, 1985, the law outlines several important principles with regard to this: • Child support is 'an absolute duty' of parents 'based on the relationship of parent and child.' (per Fitch Juv. Ct. J. in Re F, 1976) (196) • 'Child support is a parent's first obligation and the court will not subordinate that obligation to any other,' including business obligations: 'Accordingly, where the father used all of his available income to maintain his farming operation, he was nevertheless found obliged to pay child support of $200 monthly.' (Mitchell v. Mitchell, 1988) (196) • Both spouses 'have a joint financial obligation to maintain the child' (Divorce Act, 1985, s. 15(8)). • The amount of child support is to be decided based on 'the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought' (Divorce Act, 1985, s. 15(5)). In apportioning that obligation, the court is to consider the 'relative abilities of each spouse to contribute to the performance of the obligation' (s. 15(8)(b)). • The child's postdivorce standard of living should not suffer as a result of the divorce. The court will, however, 'generally respect agreements settling child support where the agreement provides the same level of financial support which the children could reasonably have expected if the family had remained united.' (Currie v. Currie, 1988)(197) Each of these principles carries with it a number of assumptions and implications. The gender-neutral inclusion of mothers in the expectation of 'joint' financial support of children by 'both spouses' recognizes the advances women have made in the labour market, but it also

146 'Deadbeat Dads' ignores the reality that women tend to earn less, and that many women are out of the labour force while raising young children. This is factored into the 'apportioning' of the support obligation: it is assumed that the 'means' of custodial mothers are likely to be less than those of non-custodial fathers because of the gendered division of labour and inequalities in the job market. Consequently, the brunt of financial support usually falls to the higher-earning father.6 The needs and means principle establishes a competition of needs between children and parents, and between biological children and stepchildren. Several examples follow: • Tn determining child support, the children's needs should be given priority over those of the parents.' (King v. King, 1990) (195) • 'In Pedersen v. Pedersen (1984), 39 R.F.L. (2d) 449 (B.C. C.A.), the husband was ordered to pay child maintenance even though he was unable to find work and his own monthly expenses exceeded his income/ (196) • 'Where the husband, subsequent to separation, had commenced living with another woman and was contributing to her support as well as that of her two children, his application on divorce to reduce the support payable for his own children was dismissed. Given that the husband had misconceived his priorities, and that the wife was unable to meet the children's needs adequately, the amount of child support was increased.' (Routley v. Routley, 1988) (196) • 'In assessing needs and means, a court should take into account a potential payer's settled, new relationship and the demands which that places upon his or her resources.' (McNeilly v. McNeilly, 1987) (142) In each of these examples, the judge was faced with competing needs, or needs and means that seemed to be incompatible. It seems inevitable that in weighing needs and means, both judges and parents will have differing assessments of each. The custodial parent is likelier to be focused on the day-to-day material needs of the children and the attendant costs, especially if she has been the primary caretaker and household manager during the marriage. The support-paying parent, on the other hand, is likelier to be attentive to the details of income and expenses that determine available means. When parental assessments are at odds, the court makes the determination. The absence of legislated support guidelines, until very recently has left this determination to the discretion of individual judges. This means that when the

Looking at Legal Texts 147 amount of support is in dispute, or when the court considers that the parents have made an 'unreasonable arrangement' regarding support, it is the individual judge who determines the disposition of the father's income and the lifestyle of the mother and children.7 In the expectation that the child's standard of living will remain unchanged, there is a presumption either that a family wage can accomplish this or that adults and new families come second. Although child support is owed by the parents to the child under the law, case law does not always frame the obligation this way. Arrears of child support should not be reduced where the evidence discloses that the payor spouse had the ability to pay during the period when the arrears were accruing. It would be unfair to the custodial spouse to thus allow the payor spouse to avoid all obligation toward the children. (Lake v. Lake, 1988) (315)

The above examples highlight not only competing needs, but also competing discourses. These variously focus on the child's best interests, the parent's moral responsibility, and issues of individual rights and fairness. Each set of needs has its own logic and values; they are not all compatible with one another. Variation of Orders of Support

Once an order for support has been made, getting it varied is difficult. The law allows for variation 'to relieve economic hardship arising from a change [in] conditions, means, needs, or other circumstances' with respect to either of the parents or the child. The assumption is that if the new circumstances had existed at the time of the original order, a different order would likely have been made (s. 17). 'Economic hardship' tends to be interpreted in various ways, as shown in the following examples from decisions regarding motions to vary a spousal support order.8 On an application to vary support, the court should take the amount originally ordered as correct and consider the extent of any changes since that order. In particular, consent orders made with legal advice ought not to be lightly disturbed. (Friedman v. Friedman, 1987) (291) A court may vary a support order based upon a final settlement agreement where there is a radical unforeseen reduction in the payer's ability

148 'Deadbeat Dads' to pay. A reduction in the payer's ability caused by a stroke qualifies as valid grounds for variation. (Smith v. Smith, 1990) (284) Although the court may temporarily reduce a support award based upon a settlement agreement where the payor is out of work, such an order should not be interpreted as meaning that the original settlement will not be upheld once the payor is again employed. (Sobstyl v. Sobstyl, 1989) (285) Where the husband's business was cyclical in nature, a temporary decline was found to be an insufficient ground on which to base an application for reduced support. (Gresham v. Gresham, 1988) (276)

Because of the economic dependence of children and custodial mothers, courts are very reluctant to reduce support awards. The needs of the mother and the children are weighed against the father's claims about inability to pay. The father is judged not only on the basis of the actual monies available to him, but also on his lifestyle, priorities, and level of responsibility. The court may well be sympathetic to a father's claim that he is no longer able to pay; but even then, the requirement to place the child's interests first may rule out a compassionate response. In summary, non-custodial fathers are constructed by the law essentially as non-parents, even though their value in the child's life is formally (though not necessarily substantially) protected. The identity of 'good father' is held out initially under the principle of the child's best interests and the presumption of gender equality of parents; when custody is given to the mother, being a good father consists in paying support and fulfilling the terms of access according to the agreement or order. The identity of valued parent is embedded in the 'maximum contact' principle, yet there are few institutional supports for it. Under the best interests standard, the rights of the parents - especially the noncustodial one - are given less weight than they might in other circumstances. However, fathers who contest the best interests standard are pitting their own perceived needs against those of the child; in effect, they are showing themselves to be 'bad' parents. A father who consciously relates to the child as property by linking support and access is violating the law and its moral underpinnings; a father who does so unwittingly is seen as having made an understandable mistake. It is deemed understandable, or 'reasonable,' because it is a common way to view children.

Looking at Legal Texts 149 The Legal Construction of Divorced Husbands Next I discuss how the law reorders relations between spouses, thus reconstructing wives and husbands as non-family. The relationship between former spouses is reframed exclusively in terms of finances (i.e., in terms of debtor and creditor). Although it is separate under the law from child support and almost never linked by the courts to access, I am including the restructuring of the spousal relationship in the analysis because the fathers gave it prominence in their interviews. This prominence was unexpected, given the legal and procedural separateness of the two issues and the intended focus of the interviews on father-child relationships. I have searched the legal texts for clues that would help us understand why the fathers struggled so hard in their interviews with the role of husband. The custodial parent who is the recipient of child support payments has control over the children, but remains indirectly financially dependent on her former husband until the children are no longer eligible for support. The law also provides for direct economic support of a former spouse, although the terms and conditions of spousal maintenance changed with the 1985 legislation. Under the current law, economic self-sufficiency or independence 'within a reasonable amount of time' has been established as a goal for the spouse receiving support 15(7). Other changes that have been introduced are summarized by MacDonald and Wilton (1992: 87): In addition to the 'condition, means and other circumstances' of the spouses that the old statute required the court to consider in determining entitlement to, and the amount of, support, the court is now called on to consider the 'needs' of the spouses and any children for whom support is sought (s. 15(5)), the length of time the spouses cohabited (s. 15(5)(a)), the functions performed by the spouse during cohabitation (s. 15 (5)(b), and any order, agreement or arrangement relating to the support of the spouse or child (15(5)(b). Conduct, which was included under the act of 1968 as an element to consider, has been cut down.

The concept of 'need/ left vague in the legislation, has been qualified by subsequent case law. This has generated some controversy: Some recent cases influenced by [a trilogy of appealed cases] in the Supreme Court of Canada have extended the concept of causal connec-

150 'Deadbeat Dads' tion to a general support principle applicable on any support application, including original applications. According to these cases, in order to obtain support, the claimant must not only establish need, but also that the need is causally connected to the marriage. However, this connection arises, it seems, only where the marriage has prevented the claimant from becoming financially self-sufficient after the breakdown. (MacDonald and Wilton, 1991:129). Nevertheless, the following important decision regarding a request for variation of a support order was made by a Manitoba court: Where at the time of the parties' divorce in 1980 the wife had limited education, job skills, and English language proficiency, an order obtained by the husband terminating her support rights nine years later was reversed on appeal. Although the wife had worked part-time during the marriage, this was merely to supplement the husband's income and did not contribute to her long-term potential. Given the disadvantages resulting to the wife from the parties' 25-year traditional marriage, she could not now be expected to achieve self-sufficiency. (Moge v. Moge, 1990)(281) Ever since the legislation was changed to include the goal of economic independence for women, the courts have been adjusting their approaches to constructing the dependent spouse. This is illustrated by two examples of rulings based on the 1968 legislation: Divorce Act, 1968 In determining the quantum of maintenance payable to a wife, the court may consider the undesirability of allowing the husband to walk away from a marriage of several years' duration in a substantially better economic position than his wife. (Redl v. Redl, 1983) (127) [I]n my view, the proper consideration for the court is what is the appropriate amount of maintenance having regard to the income of the husband and to the needs of the wife and children and to the other obligations of the husband, not only to live month by month, but to meet living expenses and other commitments, (per Macdonald, J.A., in Lohnes v. Lohnes, 1980) (127)

Looking at Legal Texts 151 Divorce Act, 1985 There is nothing in the Divorce Act which indicates that the purpose of support is the equalization of income. The real factors are need and the ability to pay. (Strutynski v. Strutynski, 1989) (126) A court would not award spousal support unless there is a causal connection between the hardship being experienced by the claimant spouse and the breakdown of the marriage. It is the economic hardship created because of the marital relationship that creates entitlement. (Winterle v. Winterle, 1987) (127)

The first two examples refer to the 'children,' the 'needs of the wife and children,' and the 'obligations of the husband.' The legal construction in the 1985 law of the wife as a 'claimant' with both 'entitlement' and 'causally connected needs' differs from the earlier legal construction of a 'dependent spouse' to whom the husband remains morally obligated even after the marriage is terminated. The husband is no longer responsible for his spouse on a continuing paternalistic basis by virtue of his privileged economic position; he is now simply a debtor. The earlier legislation recognized the pattern of economic dependency of women in traditional marriages; in contrast, section 15(7) of the new act both acknowledges the disadvantaged economic position of women in traditional marriages and expects them to overcome it 'within a reasonable amount of time/ If they do not, section 15(4) of the act 'expressly empowers the court to order support to be paid for a "definite" period as well as an "indefinite" period' (MacDonald and Wilton, 1991: 87). The effect of these contradictory discourses is evident in the case law. Among the 'general principles for determining support' included in MacDonald and Wilton's annotation to the act (127) is the following: A judge, in approaching a maintenance order, should continue to recognize the distinction between the traditional and the modern marriage. Upon dissolution of a modern marriage the goal should be that of placing both parties in a position of economic self-sufficiency at the earliest possible time. Although as a general rule marriage does not entitle one of the spouses to a pension for life, there may be circumstances where, due to the length of the marriage, the age of the parties and the marketability of

152 'Deadbeat Dads' their employment skills, permanent maintenance is required. This course should be the exception and every effort should be made to sever the relationship between the spouses to the greatest extent possible so that each spouse can pursue his or her own independent life. (Heinemann v. Heinemann, 1989) (126)

In this ruling the ambivalence of the law and the courts about selfsufficiency is evident. Judges are being called on to make a distinction between 'traditional' marriages and 'modern' ones, based on features of the couple vis-a-vis the marketplace. In a 'modern marriage/ which is assumed in the above passage to be the norm, any economic disadvantage to the wife is deemed to be temporary and reversible. Once again, there is a shift from a discourse of economic dependence and relationship to a discourse of entitlement and individualism, from family relations to market relations. The language of this passage takes us far from the interpersonal dimensions of marriage and parenting. As well, negating spousal support as a 'pension for life' both depersonalizes that support and deprecates any woman who expects it as a perquisite of marriage. The term maintenance objectifies the one who receives it; the spouses are parties; the goals are economic self-sufficiency and pursuit of an independent life. Like the obligation of both spouses to support the child, the goal of financial independence for both spouses recognizes the fact that many women, including primary caretakers, are active in the labour market. When a woman has stayed at home in a traditional marriage, or worked only part-time, or passed up an education or career advancement, economic self-sufficiency may be a difficult or unreasonable objective. This creates a gap between the expectations established in the law and the realities experienced by individuals. The creation of this gap has been permitted in the interest of finality. Three cases in which a spouse had applied to vary the original order (i.e., sought to have support continued or resumed) were brought before the Supreme Court of Canada on appeal in 1987 (Pelech v. Pelech, Caron v. Caron, and Richardson v. Richardson). The Supreme Court decision defined the test for resolving 'the conflict between the court's overriding jurisdiction to make support orders, on the one hand, and upholding agreement dealing with support on the other' (MacDonald and Wilton, 1991:128): In the Pelech decision, the court weighed the need to compensate for systemic gender based inequality; that is, the general condition of the lesser

Looking at Legal Texts 153 earning capacity of women than men as opposed to the need for finality in family law disputes, where the parties themselves had agreed upon the terms. The court came down on the side of the importance of finality in disputes, where the parties have negotiated their own agreement with independent legal advice. They should take responsibility for their own lives and their own decisions. (MacDonald and Wilton, 1992:189) This trilogy of cases has influenced subsequent decisions by the Supreme Court; 'the concept of causal connection' has been extended 'to a general support principle applicable on any support application, including original applications.' In these cases, the causal connection of need to the breakdown of the marriage 'arises only where the marriage has prevented the claimant from becoming financially self-sufficient after the breakdown' (MacDonald and Wilton, 1991: 129). The odd fusion of discourses - of financial claims, relationship, individualism, and legal technicalities - yields a hybrid of inconsistencies. Ontario's Family Law Act holds out similar expectations regarding support and self-sufficiency. Section 30 of the act states: 'Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.' 'Finality,' however, does not have the same place in separation orders and agreements as it does in divorce settlements, and there is debate within provincial case law regarding how applicable the causal connection test really is to support orders and variations under the Family Law Act (MacDonald and Wilton, 1992:192-7). Thus, decisions regarding spousal support may vary even more between federal and provincial courts than they do within either court level. Often, despite the judicial emphasis on 'need and ability to pay/ there is no real symmetry between the need of one spouse and the ability of the other to pay. A woman who is unable to become financially independent or who finds self-sufficiency harder to achieve because of her role in the marriage may experience a level of need that the husband is unable to meet. In some cases the former husband may be able but unwilling to pay. 'It then becomes a matter of comparing the respective abilities of the competing obligees to satisfy their own needs' (Aitken v. Aitken, 1984, p. 143). Below are three examples of how such comparisons turn out: • 'Where the husband was working over 80 hours per week, his application for a reduction in the maintenance payable to his former

154 'Deadbeat Dads' spouse was allowed. As he was working far in excess of the norm, it was fitting that he be allowed to enjoy some benefit from his extraordinary effort/ (Clarke v. Clarke, 1986) (299) • In Baker v. Baker (1983) the court refused to grant the wife an increase in maintenance after she had lost her job. (299) • 'Where the husband was involuntarily unemployed and consequently decided to return to school, the wife's application for an upward variation in maintenance was refused. (Hastings v. Hastings, 1986) (299) To accommodate the competing claims of husband and wife, of means and needs, a judge may impose a 'modern' arrangement on a woman who had originally chosen or agreed to a traditional one: Where the husband had no means to pay spousal support and the wife chose to delay her re-entry into the work force at a high income position to remain at home with the parties' five-year-old child, her application for support was refused. (Storey v. Storey, 1987) (144)

Determination of whether support should be paid, or of the quantum of support, may involve additional considerations. The concepts of 'need' and 'economic hardship' are sometimes supplanted by the concept of 'standard of living.' Once entitlement to support has been determined, the court must consider the appropriate standard of living for the dependent spouse. There is no consensus in the cases on this issue. The traditional view that the standard of living should be the same as during the marriage, where funds permit, is still being ordered. In addition, the courts are ordering support according to a new standard of living that corresponds to what the dependent spouse would have earned if she had followed her own career objectives instead of marrying. (MacDonald and Wilton, 1991: 139^0)

Because of the lack of judicial consensus around establishing 'appropriate standard of living/ judges are likely to differ significantly in their decisions on this matter. Case law indicates that judges may consider many factors, from the number of hours a man is working to afford spousal maintenance, to the cost of long-term care for a dependent former spouse, to the impact of the payer spouse estab-

Looking at Legal Texts 155 lishing a new relationship. How competing claims are handled is likely to depend on the individual judge hearing the case, as well as on the circumstances or 'facts' of the case per se. The rulings found in the case law often contradict each other, and some decisions are reversed on appeal. Clearly, judges are not consistent in their interpretations of law and evidence; every judge has his or her own preferred discourses. In keeping with the differing objectives of spousal support and child support, the two are clearly separate from each other in the legislation. This means that a woman receiving support does so on the basis of her status as a man's former wife, not as the mother of his children. This is somewhat ironic, given that the spousal relationship has been terminated - virtually nullified - while the parental relationship often continues, sometimes quite actively. In the discourse of the debtorcreditor relationship, any notion of family relationship has been supplanted by legalistic discourse. The State's Construction of Divorced Men as Citizens I use the term citizen here with respect to fathers for the sake of continuity with the fathers' presentation of themselves as good citizens. In fact, the law does not actively construct fathers as citizens; rather, the laws pertaining to child and spousal support heavily emphasize the obligations of separated and divorced parents - especially noncustodial support-paying parents - and display considerable ambivalence about their individual rights. The father is removed from the discourse of family and relationship and transplanted to the discourse of debtor and creditor; this has the effect of recontructing him as a civil entity who owes money to an impersonal claimant; he is no longer a father and former husband who owes sustenance to his dependants. In this way, laws and procedures pertaining to separated and divorced fathers in the capacity of support providers produce a set of identities that are distinct from the provider/protector identities typically associated with fathers. The law, as we have seen, positions former spouses in a debtorcreditor relationship that is similar (though not identical) to that of any other two individuals in the community. The enforcement of support payments by the state reinforces the construction of child and spousal support as a monetary obligation like any other except that it has priority over other obligations and is subject to enforcement measures not

156 'Deadbeat Dads' available to other sorts of creditors (Bennett, 1992). Enforcement is accomplished through the Divorce Act, Ontario's Family Law Act, and Ontario's Family Support Plan Act (FSPA), which has been expanded by the Family Support Plan Amendment Act, the legislation that governs support enforcement in Ontario. In addition, administrative procedures for enforcement by the Office of Family Responsibility were developed outside the legislation. There is also complementary enabling legislation at the provincial and federal levels.9 I now consider Ontario's enforcement legislation and procedures, and the legal commentary on them in terms of how the person paying spousal or child support is constructed as a citizen (i.e., in the civil role as a debtor or defaulter) rather than as a former spouse or parent. The relevant themes are these: • The treatment of the relationship between supporter and children and/or former spouse exclusively as a debtor-creditor relationship outside any relational context. • The contradiction between setting up an ordinary debtor-creditor relationship and establishing an extraordinary position for the support creditor as compared with other creditors. • The 'criminalization' of the support payor. The Debtor-Creditor Relationship Enforcement legislation picks up where the legislation governing the making of support orders leaves off. Enforcement is carried out at the provincial level, whether the support order itself was made under federal legislation, or provincial legislation, or comparable family legislation outside Ontario under the Reciprocal Enforcement of Maintenance Orders Act. When support has been ordered as spousal support or child support, or as a combination of the two, the support creditor referred to in the legislation is designated as the spouse. This language accomplishes two things. First, it directs us away from family relationships and to focus on monetary entitlements of the sort that might exist between any two unrelated persons. Second, it directs the attention of the debtor, the court, and the enforcement agency to the former spouse as the creditor, even when the support is actually owed to the child. The former life partner is now a creditor much like any other: an impersonal claimant on the debtor's resources. As debtor, the payor is required to demonstrate good citizenship, not good parenting or

Looking at Legal Texts 157 concern for his children, by complying with the law and with the method of payment. Still, there are aspects of the former spouse's debtor-creditor relationship that make it different from other debtorcreditor relationships. The most obvious difference relates to the automatic and universal nature of enforcement procedures, which are 'novel in creditor-debtor law' (Bennett, 1992: 9-2). Every support order made by an Ontario court after 2 July 1987 contains a provision for its enforcement by the director of the enforcement agency on behalf of the person to whom support is owing (9-6). The support creditor has the option of withdrawing the order from the enforcement program at any time, by giving written notice; however, support creditors are discouraged from enforcing support orders directly because collection and enforcement services are available free of charge from the director. Obtaining information about the debtor from data banks is difficult for a person acting independently (9-8). The enforcement agency automatically garnishes the wages of salary-earning support obligors, unless the recipient withdraws the order. This means that enforcement measures are instituted before any default has actually occurred. 'In other words, the Family Support Plan Amendment Act stresses compliance rather than remedies after default' (9-7). This approach creates implicit negative moral identities for support payers. The system presumes an intent to default and, it follows, an intent to shirk responsibility. The emphasis on coercing compliance instead of waiting for default positions every support creditor as a potential defaulter.10 I have called this creation of a negative moral identity 'criminalization' because it reflects how the identity is taken up by the institutional actors and resisted by the fathers in the study. I am not suggesting that defaulting fathers have acquired actual criminal status - support is in fact a civil matter, not a criminal one. If the support creditor decides to remain enrolled in the Plan, she must complete a filing package with detailed information about the debtor. Once the enforcement agency receives the filing package, it will forward cheques to the creditor monthly for the amount it receives from the debtor through garnishment of wages under a Support Deduction Order (SDO). Under the law, an SDO must be issued along with every court support order. The employer is notified of the SDO by the director and obliged to deduct support payments. The maximum deductible amount is different from the maximum for other kinds of debts: under the Wages Act, 80 per cent of an individual's net wages is

158 'Deadbeat Dads' exempt from seizure or garnishment; in the case of support debtors, the exemption is reduced to 50 per cent (Bennett, 1992: 9-17). Following are other features of the FSPA that have been 'designed for the benefit of support creditors [and] that are otherwise not available in other legislation' (9-2): • The director has access to information from all provincial and some federal data banks regarding the debtor's place of employment and address or location where he may be found. The director also has powers and means of investigation that 'ordinary judgment creditors either do not have or must obtain through the court if there is an available remedy' (9-7). • Garnishment processes from outside Ontario are recognized. • A 'statutory charge against the debtor spouse's real property' has been created, which enables the creditor spouse or the director to sell the property as if it were a sale under a mortgage (9-2). • Monies owing to the debtor by the Crown may be intercepted and distributed to the support creditor. • The support creditor is given priority over other creditors. A 1985 amendment to the Creditors' Relief Act provides that an order for child or spousal support has priority over all other judgment debts, including those of the Crown (9-12). • The amended definition of a support order operates to attach or garnish monies owing by a third party to the debtor, without waiting for default to occur (9-2). In short, the alliance of the former spouse (or support creditor) with the director results in a powerful, intrusive enforcement entity unlike any the debtor is likely to have encountered elsewhere. Furthermore, enforcement procedures require that the support creditor participate in monitoring the debtor. The support creditor is relied on to provide detailed information about the debtor in order to facilitate tracing and enforcement. Creditors and their lawyers are also expected to supply any information about bank accounts or other sources available for garnishment that the debtor has not declared. In fact, the director may inquire about the debtor's whereabouts from the latter's own lawyer, in spite of solicitor-client privilege and rules of confidentiality: 'The Director may obtain information without an order from any person or public body that is shown on the record in a person's or public body's possession or control ... Where the person or public body refuses to

Looking at Legal Texts 159 supply that information to the Director, the Director may move to the court for an order directing compliance' (Bennett, 1992: 9-7). The most recent measure to enhance enforcement capabilities, introduced in July 1996, is the withholding of passports and licences of various kinds (new and renewed) from individuals until their arrears have been paid. Either the director or the support creditor may bring a debtor in default to court to 'show cause' why support has not been paid. If the court is not satisfied that the support debtor is unable to pay (rather than merely unwilling to pay, or finding it difficult to pay), 'the court has power to punish by either or both fine and imprisonment if there is willful contempt or resistance of its orders' (9-10). To some extent, the employer is also threatened with criminalization. Failure to report employment or deduct support places the employer at risk of being found in contempt of court. The State's Role The state's role in divorce is as parens patriae on the one hand, and on the other as regulator/enforcer of civil matters pertaining to economic relations between former spouses. As it restructures the family relationships and arranges for care of the wife and children through the relevant legislation, the state intervenes actively in the normally private domain of the family. Judges are given very broad discretion to accommodate family circumstances and children's unique needs; the discourse of child welfare focuses the judge's attention on matters that might otherwise be addressed in a therapeutic setting. Tension arises between public and private law as efforts to protect family members who are psychologically and economically vulnerable compete with our tradition of trying to keep families responsible for themselves. The Divorce Act and Ontario's Family Law Act construct the family as 'modern' and child-centred. 'Modern' means egalitarian and nonpatriarchal. The discourse is about equality, gender neutrality and individualism. Women are constructed as not only capable of independence but obliged to be self-sufficient. The law's efforts to compensate for the residual effects of 'traditional' marriages reflect some concern for equity, although equity is not a recognized aim of the legislation. Since divorced women are seen as either self-sufficient or as dependants and claimants, divorced men are constructed as either financial providers for their children alone, or for their former spouses as well. Consider-

160 'Deadbeat Dads' able confusion over how to determine the amount of support, how long that support is owed, and the identity of the payees (wife or children) has not been entirely resolved by the introduction in 1997 of federal Child Support Guidelines. A number of 'grey areas' remain. Attempts to standardize or justify the quantum and duration of support tend to rely on a variety of discourses, including equity, morality, family relationships, and civic duty. The legislation contains competing constructions of the family that have crucial implications for gender roles, the division of parental responsibilities, and the power relations between former spouses. Other tensions and contradictions that emerge in the legislation include the following: • The state substitutes a 'recognized' single-parent unit for a previous unit comprised of two parents. Certain rights pertaining to the noncustodial parent's interaction and involvement with the child are concomitantly removed, but economic obligations are maintained, both to the child and to the former spouse. • The ongoing role of the non-custodial parent is variously framed in the economic discourse of property and the discourse of family relationships and child welfare. • The relationship between the two adults is variously constructed under the legislation as parent and non-parent ('custodial' and 'noncustodial'), cooperative ('friendly') parents, individuals with no relationship at all ('finality'), claimant and funder, creditor and debtor, and informant and defaulter or potential defaulter. Along with the separation of custody and access matters from matters of support, these contradictions lead to the fragmentation of fathers' identities under the law in ways that reflect multiple and often contradictory social constructions of what a father is and is not. Aspects of masculinity and patriarchy seem to collide with discourses of equity, child welfare, and debt enforcement. Fragmentation and contradiction also entail important shifts in power. Non-custodial fathers lose status and are disempowered as parents; at the same time, their economic privilege as a group now carries with it an obligation to provide for the physical welfare of the children, and often of the wife, too. The father's identity as a non-parent is reinforced by the lack of an appropriate model for ensuring his involvement with his child. The

Looking at Legal Texts 161 former husband and father's identity as provider is reinforced under an economic model of enforcement that produces the identities of funder and payor. The designation for enforcement purposes of the payor as a debtor, and potential or actual defaulter, produces for all fathers with child support orders an identity of "bad father' and 'bad citizen.'

5

How the Institutional Informants See It

In this chapter I report key findings based on analysis of data collected from institutional informants. Through their role as 'activators of text/ they give an interpretation of the law, policies, and procedures related to divorce and separation. The institutions and groups of professionals chosen for representation in this study are the ones most involved in interacting with separated couples around issues of support payment. These are provincial family court (two White male judges); the enforcement agency, known at the time as the Family Support Plan (the male administrator and two lawyers - both White, one male and one female - from the same regional office); two lawyers from the community (one Black feminist and one White male lawyer with a reputation for fathers' rights activism); two mediators (one White male in private practice, one Black female who works for the provincial court). Figure 5.1 provides a guide to the nine institutional informants. Brief profiles of them follow here.1 Robert (FSP2 administrator) Robert is the manager of one of eight regional offices of Ontario's Family Support Plan (FSP).3 As of July 1995, these eight offices had a combined caseload of over 109,000, distributed rather unevenly across the regions. Each office employed enforcement officers, legal counsel, and support staff. There was also one full-time worker whose job it was to investigate and process overpayment claims and issue refunds. Robert is a meticulous man. Throughout the three-hour interview he follows a prepared format designed for public relations purposes and pointedly returns to this after any questioning that I introduce. He is

How the Institutional Informants See It 163 careful to avoid offering personal opinions and to be sure that I understand he can represent only his own region, not the program as a whole. 'I don't want to get my hand slapped/ he says at the outset. This concern is likely a response to the strict oversight of staff at FSP by the head office. This becomes clear when Robert's request to head office for permission for me to formally interview one of his staff lawyers is declined. The director's comment: 'Staff have no personal opinions about the work of FSP.' On the one occasion when Robert does offer a personal opinion, he is careful to distinguish it as such. Marie (FSP lawyer) Marie is one of several lawyers employed full-time by her regional FSP Office. The number of court appearances involving FSP is very high (up to 300,000 in a single month), so lawyers in each regional office work with large caseloads and at a fast pace. On the particular summer day that I was an observer, there were over eighty cases on the court docket; most of them involved Marie as FSP representative. She was highly focused on her tasks and had little time for discussion on the day I 'shadowed' her at the courthouse. Since a formal follow-up interview was declined by the FSP director, findings for Marie are confined to observations of her work and her incidental comments during the day at the courthouse. Peter (senior FSP lawyer) Peter has been with FSP since its origins as the Support and Custody Office of Enforcement in the late 1980s. He happened to be in the office after I interviewed Robert, who suggested I might like to speak with Peter. Since I had only a brief time, I decided to focus on trying to get from him what I had not been able to get much of from Robert or Marie - that is, their attitudes toward fathers in default. Lawyer Peter is outspoken, and although he identifies very strongly with FSP's mandate, he has strong personal feelings about his work, which he expressed eloquently. These will become clear in the data analysis. Judge Marcus (judge in a large town) Judge Marcus is a judge of the Ontario Court (Provincial Division). He is one of only two family court judges in his jurisdiction, which

164 'Deadbeat Dads' includes urban, semi-urban, and rural communities. He is a very focused and thorough man who had prepared for our interview by asking in advance for questions and taking time to think about them. I sat in Marcus's courtroom as an observer, and so I was able to witness the way he dealt with the cases before him. Judge Marcus identifies himself as a 'problem solver/ and emphasizes his use of unorthodox methods in order to solve a problem in a way that minimizes hardship and delay for the parties. He is able to operate in this way, he says, because his position in this jurisdiction allows him to 'run [his] own show.' He claims that on the day I observed him in court, he was in a more formal mode than usual because of the heavy schedule. Before and during his law career, Judge Marcus had extensive experience in the field of child welfare. He admits that his background has probably contributed to his approach to sitting on the bench. Often, his responses to fathers (as reported by him and as observed by me in court) are clearly influenced by his own values as a parent. At the conclusion of the interview, Judge Marcus commented that judges are 'lonely people,' in the sense that their work is done in isolation, without much opportunity for discussion with others. Judge Howard (judge in a large city) Judge Howard is a relatively recent appointee to the Ontario Court (Provincial Division). His courtroom is located in a large city in southern Ontario with a diverse ethnic population that includes many recent immigrants. He is cognizant of the complexities of applying family law to cultures whose constructions of the family are radically different from those in Canadian law. Previously he had been director of Ontario's Family Support Plan. When I spoke to him about my research plans during his tenure in that position, he had said, 'I don't care why they don't pay.'I just want to know how to make them pay.' Judge Howard is a candid and articulate person with strong opinions about the subjects covered in the interview. He expressed his appreciation of the interview as an opportunity to talk conceptually about this area of his work. He emphasized that judges have little opportunity to receive critical feedback on their work or to think critically about it themselves. His unique perspective as someone who has had two vantage points on the child support issue makes him an especially helpful participant in the research. Asked whether he has changed his attitude toward fathers in default, Judge Howard acknowledges that he has.

How the Institutional Informants See It 165 Allan (community lawyer and activist) Allan has a private family law practice in a major urban centre. He has a reputation among practitioners in the field of divorce as an activist for fathers' rights, but he denies that this is a fair representation of him. He identifies himself as 'someone who takes on difficult cases in family law/ and as a 'champion of difficult issues in the law' whose cases often 'happen to have been related to fathers' rights.' An articulate man with a highly professional, rather formal manner, Allan expresses strong opinions about various areas of the law and the judiciary. He provided scathing criticism of the research consent form when asked to sign it, pointing out its deficiencies as a legal document. Allan describes his own practice of law as bias-free. He points out that his practice includes a proportional number of female clients, and that the advice he offers fathers is unbiased by his own experience or views. In keeping with this belief about the separateness of personal and professional positions, his response is 'absolutely not' when I ask whether any personal experiences have influenced his views. He bases his advice solely on 'experience' and on his ability to predict outcomes. Catherine (feminist community lawyer) Catherine is a feminist lawyer with a private practice in family law in the same urban centre as Allan. She also teaches part-time at a law school. She immigrated to Canada from the West Indies, where she had done research on issues of child support. Her articling work with Ontario's Office of the Official Guardian exposed her to the lives of families in which divorce had caused intense, persistent, and often unmanageable conflict. She considers herself a feminist but is careful to define the feminism that commands her allegiance as 'one that includes all women.' (This emphasis reflects a critique of the dominance of White, middle-class Eurocentric women in the feminist movement.) Catherine's practice includes both non-custodial fathers and custodial mothers, many of them from the West Indian community. Given her strong identification with women's and children's issues, the issue of representing fathers who are in default of child support payments is a moral one for her. She struggles to understand fathers' points of view. Catherine's analysis of the judicial system is based more on issues of race and class than on issues of gender. I originally contacted her as a

166 'Deadbeat Dads' referral source for father participants in my research because I wished to learn about the experience of fathers in a different racial/ethnic group. Despite her efforts, none of her clients agreed to talk to me. She was candid about the limitations inherent in the position of a White, middle-class female academic researcher trying to gain the trust of Black male clients who already mistrust 'the system.' She then consented to participate in the study herself as an 'institutional informant.' She has an important perspective to contribute regarding race and class. At one point she politely admitted her unwillingness to discuss 'projected stereotypes of Black men as husbands and fathers with a White woman.' Susanna (mediator) Susanna is coordinator of mediation services attached to the Provincial Court in a large urban jurisdiction where the population is of mixed immigrant and ethnic background and relatively low socioeconomic status. Susanna herself is an immigrant to Canada. Referrals to this service come from the court or from lawyers, usually if the parties are unable to afford private mediation. Some clients are walk-ins 'off the street,' or they have been through General Division court and want to 'do the whole thing on their own.' Susanna has formal training in social work as well as years of experience as a court clerk. She speaks about her clients with candor and acceptance. Her ultimate concern is for the children and their needs, and all issues are framed in terms of them. She keeps this focus unwaveringly in the foreground and aims to have her clients do the same. Her language is consistently the language of relationships and human experience rather than that of law or protocol. Nevertheless, she is well versed in the relevant areas of law and procedure, insofar as she must keep herself and her clients within these parameters. Malcolm (mediator) Malcolm is a paralegal/mediator in private practice in a small city in southern Ontario. Having accompanied him to the courthouse to file some documents, I learned that he has a close and comfortable working relationship with the staff there. He is highly knowledgeable about legal matters of all sorts and talks about them with ease. Before working in this field, Mediator Malcolm was a police officer in two different

How the Institutional Informants See It 167 forces. Like many former police, he has applied his familiarity with the law and the rules of the court to a related second career. Despite brief formal training in mediation, Malcolm describes much of his work as being 'by the seat of the pants' - a candid way of saying 'experience and intuition/ (Most other informants admitted only to the 'experience' part.) Malcolm expresses great respect for the fundamental 'checks and balances' of the legal system and believes that in this sense people are well served by it. He offers personal views on the motivations of men and women alike as they struggle through separation, divorce, and related issues. His reasonable and insightful theories are clearly influenced by his personal values regarding men, women, and parenting; he acknowledges that these, in turn, have been shaped by his experiences as a law officer, husband, and father. As representatives of their respective institutions, the informants are able to represent how the different parts of the system view and participate in the separation and divorce process. Since each individual occupies a unique social location, his or her subjectivity shapes how the institutional perspective is taken up and represented. The focus of the analysis will be on how the institutional actors construct divorced men as fathers, as husbands, and as objects of safe involvement. Themes explored in the previous two chapters of the analysis also appear here in the section on institutional informants. These themes are legal issues (legislative or procedural definitions, limitations, etc.); moral issues (responsibility, commitment, right and wrong); relationship (care, love, nurturance/providence); financial (creditor/debtor, support levels); justice (rights, fairness); private versus public law (relationship of the state to the separated family); administrative (bureaucratic structures, procedures, requirements); combativeness (adversarial relationships, winner versus loser, power); quasi-therapeutic (problem-solving, psychological interpretations); coercion (enforcement); and flawed judicial system (priorities, funding, incompetence, biases). How the System Constructs Fathers Several themes emerge from the interviews that help us understand how fathers are constructed qua fathers within the system. These themes are non-custodial fathers' loss of status and rights, the meaning of fathering, and good fathers versus bad fathers.

168 'Deadbeat Dads' Figure 5.1. Institutional informants FAMILY SUPPORT PLAN Plan Administrator Robert Manager of eight offices as a regional administrator Plan Lawyer Marie

Senior Plan Lawyer Peter

Acts for FSP in 'show cause' hearings, heavy caseload

Strongly identified with FSP mission

JUDGES Judge Marcus

Judge Howard

Provincial Court judge in large town

Provincial Court judge in large city and former director of FSP

COMMUNITY LAWYERS Activist Lawyer Allan

Feminist Lawyer Catherine

Reputation for championing fathers' rights Concerned with issues of class and race MEDIATORS Mediator Susanna

Mediator Malcolm

Works with urban population of ethnic background

Paralegal in a large town, former police officer

Fathers' Loss of Status and Rights Judge Howard expresses concern about the MacGyver ruling on the mobility rights of the custodial parent.4 This landmark decision by the appellate court ruled in favour of a custodial mother's right to leave the jurisdiction with the child: 'The message to men from [the MacGyver] decision was, "You really have no rights and don't try to

How the Institutional Informants See It 169 control your wife through access/" He goes on to explain: 'Since [MacGyver] the father-child bond is the most easily displaced bond that I know of in law. Even parents who abuse kids are ensured access/ The MacGyver decision, in this judge's view, leaves non-custodial fathers 'really powerless/ In contrast, the custodial parent is imbued with full parental rights and therefore control. Court mediator Susanna believes that having what the law calls 'custody' - a term she wishes would be replaced by references to 'parenting or something' - 'brings with it a sense of power and control that makes some people think that they can do whatever they please/ She goes on to say that non-custodial fathers, who are subject to this 'power and control/ complain about it: 'They feel, "If you've got the power, why do you want my money?"' The power of the custodial parent is also inferred, though in a more positive light, when Malcolm says: I believe there's a greater openness today on the part of women and men to fathers being actively involved with their kids ... I think the women's movement has encouraged, maybe even forced men to be more involved with their families, with domestic life in general. Women are more willing to give up more of their maternal role. Fathers have a lot of feelings about losing their kids and it hurts more if they have been involved. But because women are willing to have them remain involved as key persons at key times, they feel they will be OK and the family will be OK.

In other words, when mothers are willing to use their power to permit men to remain involved with their children, fathers are generally satisfied with the outcome. The inference seems to be that it is not maternal power per se that threatens fathers; rather, it is the exercise of that power for the purpose of excluding fathers from relationships with their children. Allan talks about the power that women gain following separation: 'You often have a woman who didn't have much power in the marriage, and when the marriage breaks down and the children are with her, she then has some power. Especially if he desperately wants to have a relationship with them/ He also talks about how this power is often abused: 'Access is interfered with, denied, obstructed, or spoiled. Many options are available to the parent who has custody/ After explaining that this power has come to custodial parents with the aid of the law and the courts, Allan talks about high support

170 'Deadbeat Dads' awards as the badge of judges who are biased in favour of women, and adds: 'I never met a judge who was pro-fathers.' The implication is that such judges are allied with mothers against fathers. Being 'pro-children' does not seem to be an alternative he considers. Susanna concludes that fathers need more 'recognition' as parents. Asked where this recognition would originate, she replies: 'I think it has to come from the state. Right now it seems that the state is for women and not necessarily for men.' In the above examples, mothers are constructed as being powerful in their role as the custodial parent, and fathers are subject to that power. This affects the father's freedom to connect with his child, both in law and in lived experience. Many parents act out the power differential around issues related to access. Although most institutional informants are careful to reject the resulting access difficulties as a justification for non-payment of support, nearly all of them acknowledge that it is a real issue for many fathers. Judge Howard says: 'As a judge I'm really disappointed to see the extent to which mothers seem to want to keep fathers out of their and their children's lives. I admit that I get a skewed population in court, and so does the Family Support Plan, but I do find it discouraging.' Catherine concurs that complaints about access are often 'real, not trumped up,' though she is careful to add that often access is withheld 'for legitimate reasons, sometimes even with the court's agreement.' Malcolm says that vengeful mothers sometimes use their control as the custodial parent to keep fathers from seeing their children. Susanna says: 'Let's face it, not all mothers are angels.' The Meaning of Fathering: How the System Constructs Fathers as Providers and as Nurturers Society's message to fathers is not only about the loss of power but also about their loss of value as parents. The informants discussed the emphasis the system places on fathers as providers, at a cost to their rights as parents. One important site of the split between relational and economic functions is found in the relationship between support and access. According to Robert, FSP makes it clear to support payers at every turn that the agency's sole function is to enforce payment, not to help with problems of access or even with employers who may fire them illegally because of the support deduction order. Catherine refers to

How the Institutional Informants See It 171 this institutionalized separation of the two functions of support and access as a real problem: 'We have the Family Support Plan and the Official Guardian's Office, which are two separate agencies, one which enforces support and one which makes determinations about access. And sometimes they are working in opposing directions.' As a matter of policy, FSP cannot consider the relational dimension of the family. Robert explains: 'Many people come in and say "Why am I paying if I'm not seeing my child?" The response to them is, "Excuse me, that's not up to us to decide. We have no jurisdiction over that. Take it up to court. Do what you have to do.'" The fathers' question, 'Why am I paying if I'm not seeing my child?' constructs payment and access as reciprocal. In contrast, the institution's response emphasizes that the two are structurally separate. Support is assigned to the enforcement realm; access is assigned to the courts or the Official Guardian. The courts deal with access in legal terms, the OG in a mix of legal and quasi-therapeutic terms, with the focus on family relationships. Judge Howard acknowledges that at enforcement hearings, when a father complains to the judge about access problems, some judges are likely to respond: 'Sir, that is completely irrelevant/ He adds: 'Access enforcement needs to be strengthened, but I don't know how.' Judge Marcus supports the separation of access from support in both law and procedure, yet he - along with nearly every other institutional informant - explicitly concedes that in the minds of non-custodial parents, the two issues are connected. Non-custodial mothers complain the loudest about this. 'They say: "He's got my kids. What more does he want?"' Judge Howard says: 'I'm certain I've read, or been told, that there's a direct correlation between non-access and non-payment. You know that there's a strong connection apparent between access and support payment in fathers' minds. Fathers who see the kids are likelier to pay, because they see where the money is going.' Catherine says: 'I have to question whether the dichotomy we've established between custody and access and child support is realistic/ She muses about the problem from the non-custodial father's perspective: 'If you walk in this person's shoes - which we don't often do when we're lost in the mechanics of the law - then you begin to understand why a father who has been denied access might attribute more weight to this than to money; whereas a woman who doesn't get support money is only being denied money. I wonder if I myself would

172 'Deadbeat Dads' question paying child support if I'd been denied access over an extended period of time.' She goes on to point out that the outrage over denied access is not always driven by a strong emotional bond with the children; rather, 'it's that you're their father and you should be able to see them and they should be able to see you. I wonder - with 20 per cent of me, mind you - whether it's reasonable to expect fathers who feel this way to buy into the moral obligation. For some of them it's a question of fairness, of justice. The question of access is [for them] a moral one too. My feminist students and I struggle with this.' The feminist issue emerges when the connection between access and support is understood as a proprietary relationship. When support is constructed as payment in exchange for access rights, the connection seems repugnant. For example, Judge Howard understands this construct as a willingness to pay support only if one can 'see where the money goes.' Catherine understands the connection differently. She has developed an understanding of it that allows her to see the moral argument underlying the father's position, though the morality may be different from her own.5 Another way to think about this is that the father's desire to nurture the child monetarily might be strengthened by allowing him to nurture the child emotionally. Catherine's comment about how difficult it is to walk in someone else's shoes when one is immersed in legal procedures draws our attention to the effect of competing discourses. Legal discourse may be inimical to discourses about relationship and morality. Allan's take on the relationship between access and support is dramatically different, yet it makes the same point about competing discourses. When he postulates that many fathers withhold support as a strategy to get the issue of access addressed, I ask him whether these fathers worry about the effect of this manoeuvre on the children. He replies that each case is 'about a legal dispute, not about feelings.' When the matter is framed as a matter of justice, all questions of relationship and feeling seem to become irrelevant and inadmissible, not only within the courts but also within the very consciousness of the father. In such cases, the point of linking support and access is to suppress or negate relationships and responsibility. Ironically, although the 'strategy' is ostensibly undertaken in order to strengthen the parent-child relationship, it seems to undermine the connection in several essential ways. Allan's rationalized version of the access/support

How the Institutional Informants See It 173 connection, which uses the law to justify the lack of a concerned parental response, is the one where a moral orientation based on relationship and responsibility is most clearly excluded. All the informants stress that the connection between parent-child involvement and the obligation to support exists mainly in the minds of the fathers. Yet most of the informants also say that the most effective way to get a father to pay support is to appeal to his attachment to his child. Judge Howard recounts: I take the time to explain things kindly, I say I'm sympathetic. I acknowledge how they feel... I say 'It's the children's right to see you, and that right is being violated ... Are you going to compound that by depriving them of their right to eat? You're telling me in one breath that you love your children, but in another breath you won't help them to live.' Then I talk to them about what they can do about access. I try to focus the conversation onto the kids and their caring for the kids. This works with 95 per cent of fathers. At another point, he says, 'I remind them that they surely don't pay support because it's a judge's order. You do it because you love them ... That embarrasses them.' Judge Marcus says: Well, I agree with giving more recognition to the rights of non-custodial parents, but I also think it's important to stress parental responsibility. Sometimes, when I have a father before me who's asking for more access but hasn't been paying or isn't paying very much, I try to talk to them about becoming more responsible and involved in the day-to-day care of the child ... And by the way, you know, some fathers become much better parents after they separate than they ever were before. Mediator Susanna says: I avoid labels because people can't negotiate when they get caught up in labels. I prefer to use language like 'parenting' instead of 'custody' or to talk about how they're going to manage while living separately, and continuing to parent the child. When people hear those words they respond more constructively. I make them spell out what they personally want,

174 'Deadbeat Dads' too, instead of using terms like 'joint custody.' I want to make them think. I want to get that father to verbalize what he's thinking but maybe hasn't even understood himself. Q: Given what you have said, do you usually know you're in trouble when the guys start talking about rights? A: Oh yeah! Sometimes the men get very stuck on this. Q: How do you move them out of it? A: Well, I usually would see them individually to get an understanding of where this person is coming from. I don't take that talk about rights at face value. I assume it stands for other concerns or interests and I try to find out what they are. Sometimes rights are the only way a person knows how to express what it is they want.

In each of these examples, the informant is explaining how he or she demonstrates recognition of a father's potential contribution to his child as an active, nurturing parent, rather than simply as a source of financial support. This positions the individual father strategically as a valued parent who has an interest in the child. The father's own claims to be a caring parent, whether direct or indirect, are used to extend the expectation that he will follow through with the behaviour of a caring parent. In all this, each informant is trying to move the father away from a discourse of rights toward a discourse of caring and responsibility. Progress is generally much easier in this context. Another way to understand this is that the institutional actors are offering the father an identity position of 'good father/ In contrast, Allan adheres to legalistic arguments that rationalize a position of non-payment. By holding to a discourse of rights and justice, he keeps the identity of legal disputant in the foreground and the identity of concerned father in the background. Another element in gaining compliance involves acknowledging the father's concerns, that is, allowing him a 'voice.' Susanna's approach as mediator is to help the individual express underlying and perhaps unformulated, 'interests.' Judge Howard approaches it this way: T bend over backwards to demonstrate fairness towards the payor. I know from my prior dealings with them [at FSP] that if I don't listen to them, I won't get anywhere.' There is more than pragmatism behind the judge's approach. His statement acknowledges the significance of the individual father's perception of equity. At another point, he reiterates the value of acknowledging an individual's need to be 'heard.' I remind him of a

How the Institutional Informants See It 175 conversation I had with him during his tenure at FSP, when he said, 'I don't care why they don't pay. I just want them to pay!' and ask him whether being on the bench has changed his attitude regarding this issue. 'Yes, I have changed on this,' he replies. 'Legally I don't care, and when I was at FSP, I couldn't care. As a judge I've changed my attitude. The most important thing when a person goes to court is to come out feeling like they've been heard and understood by an objective person. They want the judge to hear. Legally it may not matter but they have to feel that as judge I do care. I've softened since FSP.' The judge's recognition that justice must be combined with individual recognition contrasts sharply with the picture of FSP provided by a number of the informants, by my own observation, and by a number of FSP publications. The deliberately legalistic, bureaucratic, and depersonalizing stance of FSP personnel is discussed at length in a later section on citizens. Categorizing fathers as 'Good' or 'Bad' Within the system there are several ways in which fathers are categorized as either 'good' or 'bad.' The informants who talk about appealing to the 'concerned father inside the support pay or' are talking about people they consider 'good fathers' in the sense that they are able to respond in a caring, responsible manner. A 'bad father' is one who does not care, as demonstrated by an absence of genuine interest in and financial support for the child. Such a father cannot be induced to pay even by strategic appeals that employ the discourse of loving family relationships. Following are several examples of how these two categories of fathers are distinguished from one another. Catherine explains that many fathers who refuse to pay support eventually do pay after they consult with her and 'the process evolves.' The process includes presenting both legal and moral arguments to the father and addressing the arguments the father presents in turn. Although some continue to 'out and out refuse,' she finds that most can be persuaded that their concerns about access or about money misspent by the children's mother should not prevent them from paying support. Even those who continue to refuse invariably offer some sort of rationale. 'And all of them have some moral point of view,' she claims, except for those who argue, 'She's got someone else now - let him take care of that.' Catherine calls the latter 'the closest thing to a

176 'Deadbeat Dads' non-explanation' she has encountered. (This questionable rationale will be examined more closely in a later section on fathers as former husbands.) Catherine focuses on judging the moral basis of her clients' arguments, rather than on the clients themselves or even on their behaviour. Being able to perceive moral reasoning behind a father's position makes it possible for her to empathize with him. The perceived absence of moral reasoning leaves the client's position unexplained and presumably difficult to relate to sympathetically. Once she sees a non-payor as someone with a moral position, she cannot relegate him to the category of deadbeat or criminal. She has no choice but to see him as someone with a moral identity. Judge Howard distinguishes explicitly between the '95 per cent of fathers' who respond positively when he appeals to their sense of caring and responsibility, and those who do not: You get these fathers with huge arrears, but they have new cars, they live well, they're supporting a new family. I ask them, 'If you were told now that all arrears would be wiped out on condition that you never see them again, what would you say?' There's usually a pregnant pause and then they say 'yes' [i.e., I accept that offerl. I could count on one hand the number of fathers who say 'No, it's not about that.' Many women will waive arrears to get the former husband to back off and get out of her life, and most fathers accept this ... Often the guys who say 'Yes' have just finished using access as a reason they don't pay.

He goes on to say that sometimes, even after access has been litigated and settled, 'the guy still doesn't show up [for visits].' The judge concludes: 'Parents who genuinely care keep trying to stay in contact with the child somehow, or send Christmas presents, or something.' The most striking element here is the flagrant linking of support to access in the judge's first excerpt; in essence, it constitutes an offer to suspend payments if one will forfeit the goods. More subtle is the judge's attempt to engage the father by offering him the subjective position of 'good father.' Judge Howard uses the father's desire to maintain contact with his children as his ultimate measure of 'genuine caring'; he finds that this is usually accompanied by some desire to give to the child materially as well. A father who is unwilling to pay is not interested in maintaining any level of relationship with the child either. Thus, through the linking of money and relationship, a good

How the Institutional Informants See It 177 father is constructed as someone who expresses relationship through caring and material provision. When Susanna says, 'Let's face it, not all mothers are angels/ she is implying that normally mothers are considered 'angels'; this relegates fathers to the role of devils. She herself has mixed feelings about fathers who don't pay. Like Catherine, she has found that many fathers argue that the money is being misspent. Also like Catherine, she finds that going through the exercise of examining the actual costs of feeding, clothing, and caring for a child 'gives some reality' to the father's perspective. She understands the father's position in these cases as being based on a lack of comprehension of the real, day-to-day costs involved: Usually they were the ones who paid the rent and other things, but they didn't do the spending related to the child specifically. It's sort of similar to the wife who is not aware that there's a pension fund that she is entitled to. Both are examples of areas that are totally outside the person's normal mindset during the marriage. As far as fathers' awareness of budgeting for children is concerned, it's just not there. They also often have not realized that supporting the same number of people from two separate homes is always more expensive than when you can combine costs within the same household.

It seems from this that the denial of the child's needs is only sustainable at the abstract level and is probably compounded by deeply ingrained resentment over the control the wife has over the money to be spent on the child. Once the father is asked to imagine how he would spend the money, he is apparently able to be more realistic about the amount of support required. This undoubtedly demonstrates issues of control at several levels. Control issues are especially predictable in the case of men who during the marriage managed the family's money and decided how to spend it. Susanna perceives that when a father persists in seeing the money as supporting his former wife rather than the child, he may continue to resist paying even though he has the ability. He may permit himself and a new family to live well yet see a similar standard of living in his wife's household as evidence that the support was misdirected. Asked what she thinks the issues are in such cases, Susanna says: 'It's partly about fairness, I suppose. I don't know whether it's more a matter of what you want for your children and the lifestyle that you want them to have or whether it's about hav-

178 'Deadbeat Dads' ing so much resentment for this person that you're prepared to let your children suffer.' She offers her 'personal theory' about the connection between this ability to put the child's welfare first and a given father's initial level of commitment to spouse and child. She identifies three categories, which range from live-in life partner to a Visiting relationship'; in the case of the latter, there was initially no expectation of continuous connection and responsibility. She and Catherine both note that the state's expectation that the commitment will be there after the relationship has ended comes as a complete surprise to such fathers. Mediator Malcolm perceives that 'the majority of fathers are interested in being involved with their children, but their rapport with the kids is rarely the same as the mother's ... I don't believe that men on a grand scale set out to diddle their kids. I think it's usually something that evolves through circumstances.' He establishes a standard for fathers that is different from the standard for mothers. According to him, fathers are expected to demonstrate a measure of interest in their children, but the communication and understanding that make up 'rapport' are not as developed between fathers and children as they are between mothers and children. This leaves more space for a father to be remote or lacking in understanding of his children without being considered a failure as a parent. A 'bad' father is one who would knowingly, deliberately 'diddle his kids'; 'bad' fathers are the exception. Malcolm's assumption of good intentions allows for a possible moral identity for most non-supporting fathers. For Allan, as for Malcolm, it is the intent behind non-payment that distinguishes the good father from the bad one. He distinguishes between fathers who withhold support as a legal stratagem and those who do it because they are 'deadbeats.' He claims not to be personally familiar with any such 'deadbeat dads.' The deadbeat father (i.e., the one without good moral intent) is not a social identity that he acknowledges as real; rather, he believes it has been created by 'the media.' Robert comments that politicians and the media foster a perception of fathers as 'deadbeats.' In spite of the distinctions the informants make between financial provision and caring, and between negligence and evolved circumstances, FSP is not mandated to consider any parent-child relationship other than the monetary one, and some judges are known to take the same position. Judge Howard, in trying to make the point that 'it's [fathers'] perception that they're treated as bad fathers' (i.e., as opposed

How the Institutional Informants See It 179 to the reality), concedes that 'the only time I could say he's being treated like a bad father is when a judge summarily dismisses his concerns about access. Because really, half the order is being ignored.' In other words, when the father is treated in a one-dimensional fashion, considered merely as a 'moneybag' (Susanna's term), and discounted as a caring parent, his failure to pay full support becomes the sole measure of his success as a parent. In these contexts, good fathers are those who pay, and bad fathers are those who don't. Intentions, feelings, and relationships are not part of FSP's domain. Matters are dealt with there 'in black and white,' 'word for word.' When I question Robert about the validity of the claim that FSP statistics distort the problem of non-payment, he replies: 'From conversations at the counter with clients or support payers, I know they resent the term "arrears" for any purposes, even if there is $500 outstanding, say, from $10,000.' He explains that by the second day of the month, a payor is deemed in arrears if the payment hasn't been received. He concedes that there is resentment about this. "They complain about the wording of the letter - "You're painting with the same brush. I'm not a deadbeat." These types of concerns have been sent to head office.' These payers object to FSP's failure to distinguish between "bad' fathers and 'good' ones, as the fathers themselves define these terms. To them, a 'bad' father is a 'deadbeat,' that is, one who shirks responsibility by not paying at all. A 'good' father is one who does not intend to shirk responsibility and has presumably demonstrated this through partial payment. Robert expresses the fathers' rejection of the identity of 'bad father/ which they perceive is being imposed on them along with the designation of 'arrears' and the mobilization of enforcement measures. In the data gathered from FSP personnel, there is never any reference to 'fathers,' only to 'payers' or 'support debtors.' As a result, fathers are constructed exclusively as debtors, which restricts the domain within which FSP personnel may relate to them. The implications of this are explored in the section on citizens. The law and FSP rigidly separate support from access and from all other aspects of the non-custodial parent-child relationship; yet the practices related to 'activation' (i.e., interpretation and application) of the law by lawyers and judges often deliberately make the connection. The law and FSP separate the identities of loving father and responsible supporter; only the latter is recognized in matters relating to money. A father who doesn't pay is a bad debtor. Fathers are said to

180 'Deadbeat Dads' read into this a designation of 'bad father'; in fact, so do judges, lawyers, and mediators under certain conditions. A Note about the Subjectivity of Institutional Informants The institutional informants present mixed, often ambivalent, and sometimes contradictory perspectives on fathers. Informants' social locations seem to influence the way they understand fathers and the attitude they adopt about working with fathers. For example, feminist lawyer Catherine's critical analysis of the moral claims made by fathers who feel support and access should be reciprocal is a response not only from her location as a Black West Indian feminist lawyer, but also from an identification with the parental role. As such, it reflects a considerable degree of open-mindedness and suggests a focus on complex understanding as well as a willingness to tolerate contradictions. Since, in her practice, her male clients are likely to be Black (particularly of Caribbean origin), this approach may be part of a protective stance towards members of her own community. She acknowledges that she struggles with the contradictions between her allegiance to feminism and her allegiance to the Black community. These two positions are clearly in tension for her around the issue of non-supporting fathers. Her social location as a Black feminist is constantly being tested by her role as a Black woman lawyer (i.e., when in a White, male-dominated justice system she is working with Black male clients who have been accused of breaking laws that protect women and children). Her critical analysis seems to be a way of managing this complexity with integrity. Allan, as a White male lawyer defending male clients (likely mostly White) in a justice system that he seems to see as biased in favour of women, takes quite a different position. He is less interested in the fathers' moral or parental position than in their legal one, and he focuses on justice in terms of fathers' rights and legal principles. Unlike any of the other informants, he explicitly excludes from consideration fathers as caring parents and admits only strictly legal issues where support is concerned. At the same time, he employs the therapeutic discourse of 'dysfunctional families' and 'unresolved marital issues' to explain what he identifies as custodial mothers' abuse of power regarding fathers' access to their children. Instead of using this language to get at feelings, however, he uses it to make a case for mothers' 'continuing power plays.' Similarly, he uses the discourse of loving

How the Institutional Informants See It 181 fathers (e.g., their 'desperate desire to have a relationship with their kids') to support an argument for fathers' rights, rather than for fathers' emotional well-being or the best interests of their children. Construction of Divorced Husbands In the legal and institutional processing of divorce, new relationships and identities are constructed for all family members. Reconstruction of the relationship between former spouses is fundamental, and involves changes to the power relations between them, including the relations of economic power. Analysis of the institutional informants' data reveals that a couple's social identity has four main aspects: • • • •

The positioning of the former spouses as adversaries or contestants. The positioning of the former spouses as debtor and creditor. The husband's loss of patriarchal privilege and control. Husbands as hostile and potentially dangerous to their former wives.

Husbands and Wives as Adversaries or Contestants

Throughout the institutional informants' data there are references to the former spouses as adversaries or enemies. Susanna's observation that a man's resentment toward his former spouse may overshadow his ability to give priority to his child's needs was noted earlier. She explains that 'a very, very significant proportion' of her mediation cases involve 'getting back at [the former spouse] with no regard for what they're doing to the children.' Malcolm says that sometimes a woman may have a Vendetta' against her husband. Also, both judges note the potential for violence toward wives by angry husbands. Several informants suggest that the adversarial nature of the system itself positions hostile people to act out their hostility. For example, Judge Marcus objects to the way the Ministry of Community and Social Services, as assignee for support recipients, routinely compels women to take their husbands to court for payment defaults, or to demand increased support. This stance positions the wife as an adversary and often evokes a hostile retaliatory response from the husband. Catherine, on the other hand, explains how she deliberately uses such situations to deflect the husband's hostility away from the wife and toward the system, by encouraging him to take the view that the gov-

182 'Deadbeat Dads' eminent is behind his wife's demands. Both informants are acknowledging the provocative nature of the situation and the hostility it is likely to arouse in the husband. Mediator Malcolm says, Separation and divorce are human issues with legal ramifications, not a compendium of rules. But the system is very set in its ways and some people are just naturally litigious, so they go at each other. No lawyer should be allowed to undertake a family matter until a mediator has certified them unmediatable. Lawyers create these situations where the conflict just keeps escalating. Q.: So your feeling is A.: That's the way it is. It's not my feeling.

In contrast, he characterizes his own role in mediation at times as that of 'a decoy [to] draw fire when people need to vent their anger.' He talks about the anger in a non-judgmental way; his goal in mediation is to prevent the anger from escalating or becoming destructive to the negotiation process. In his view, the system tends to encourage expressions of anger and hostility. Judge Howard talks at length about the importance of taking a mediatory approach in family law situations, rather than a hard-headed 'legalistic' one; this reinforces his conceptualization of the underlying goal as the resolution of family problems. He is a staunch supporter of the recommendations in the Civil Justice Review (Ministry of the Attorney General, 1995), which are aimed at minimizing the complexity and conflict inherent in family law cases, and speeding those cases up. As an alternative to adversarial discourse, he uses the quasi-therapeutic discourse of conciliation and problem resolution. Similarly, Judge Marcus refers to himself as a 'problem solver' who is flexible about procedural matters in the interest of helping the parties resolve complex family issues in a timely way. The judges' wishes for a process that emphasizes mutually beneficial resolution highlight the fact that they are concerned about the current adversarial framework, which constructs spouses as contestants who will end up as 'winner' and 'loser.' In contrast, Peter explicitly rejects resolution or conciliation as an appropriate approach to support enforcement: 'The Director [of FSP] is my only client. I don't take direction or instructions from the recipient. It's not my role to bring consensus to the matter.' He points out that mediation resulting in flexible support orders based on consensus and designed to avoid court in the future actually creates problems in the

How the Institutional Informants See It 183 context of FSP's mandate. The explicit rejection of consensus implies a reliance on force of law and on an adversarial relationship between the debtor and the director; within this framework, the likelihood of inflamed hostility between the spouses is not considered a problem. This is consistent, of course, with the separation of access from support issues, and with FSP's construction of divorced fathers exclusively as providers and debtors, rather than as former spouses or continuing parents. An interpretation offered by Marie, the FSP lawyer, about why judges tend to be 'soft' on fathers at default hearings throws an interesting light on the relationship between former spouses: T think part of the problem is that the men appear in front of the judges without the women being there, so the judges are too sympathetic to the men.' Her meaning seems to be either that the stories the men tell are only believable when the women are not there to challenge them, or that the men's claims of hardship draw sympathy only when they do not have to compete with those of their former wives. In either case, this perspective highlights the contest between the parties for credibility and resources, as well as for the court's sympathies. Positioned as the ally of mothers/creditors, FSP seems to see itself as necessarily hostile to fathers / debtors. The adversarial discourse, which harnesses mutual resentment and hostility, inevitably produces winners and losers. In some situations, the institutional actors see themselves as representatives of the state who join the fray on behalf of one party or the other. The alternative favoured by other of the informants is a discourse of conciliation and 'problem resolution.' Wives as Recipients/Creditors, Husbands as Payors/Debtors

FSP clearly labels the former spouses as 'payor' and 'recipient' and attempts to construct the relationship between them as debtorcreditor. The consistent effort to keep other matters out of the relationship is testimony to the fact that the relationship is not, in fact, onedimensional. At the same time, the state enters into the relationship in an active, directive way. To illustrate this, following are several excerpts from a brochure titled Tips for the Support Payor, published by FSP (Ministry of the Attorney General, 1993):6 [1.] You must never make support payments directly to the recipient. If you do, the Family Support Plan will not know about these payments.

184 'Deadbeat Dads' We will think there are arrears owing, which may result in costly and unnecessary enforcement action against you. (3) [2.] We cannot change your support order or agreement in any way. If you want to change the amount of your support payments, or the COLA clause, reduce the amount of arrears owing, or make some other change, this is a private legal matter between you and the support recipient. Your lawyer can help you with these matters, [italics added] (5) [3.] You may feel your obligation to pay child support under your court order or agreement has ended. This is a private legal matter between you and the support recipient. Unless we receive the written consent of the recipient or a court order stating that the child support obligation has ended, we must continue to collect support payments for the child. Your lawyer can help you take the necessary steps to have your support payments stopped... [italics added] [4.] The Family Support Plan cannot become involved in child access or visitation problems. This is a private legal matter between you and the support recipient. Under the law, support and access are two separate matters ... If you are having problems with access, you may wish to speak with a lawyer. (6)

In these excerpts there is obvious ambivalence about the public/private nature of the post-marital relationship. FSP's role as the state's enforcer of support payments is emphasized, and 'private' payments between former spouses are strongly discouraged (example 1). Yet other aspects of the support arrangement are treated as matters of private law. The repeated reminder to contact a lawyer underscores that the 'private' relationship is still governed by law. It also reinforces the adversarial nature of the residual relationship between the former spouses. It is interesting that even in the fourth example, which concerns access and visitation, the parents - in their role as parents - are referred to in terms of the financial discourse of creditor and debtor. Though access and support may indeed be 'two separate matters/ the juxtaposition of money and family relationships (including the rare reappearance of 'the child') to talk about support is a jarring demonstration of the tension between these elements. This emphasis that the two are separate draws attention to the fact that the state takes an interest in enforcing support; in contrast, it treats access as a private legal matter that is of no concern to the state unless the parties are unable to settle it privately.

How the Institutional Informants See It 185 Husbands' Loss of Masculine Privilege and Control

I begin this part of the discussion by distinguishing between fathers' loss of status and rights as discussed earlier, and their loss of privilege and control, which will be discussed in this section. The loss of status and rights signifies real disempowerment through the legal redefinition of fathers once they become non-custodial parents. In contrast, the loss of masculine privilege and control signifies the loss of patriarchal dominance within the family. Earlier, I discussed how the law positions the mother as having power over her former husband by virtue of the control vested in her as custodial parent (see chapter 4). In addition, she is granted other forms of power and control by the law and the enforcement process. Susanna offers the typical father's perspective on this: 'Sometimes after separation the woman is in control for the first time. She doesn't just control the money, she controls the kids too. She's not supposed to do that/ The issue of control is a common theme in the informants' interviews, although the perceived object of control varies. The struggle for control may be over the children, over the money, or over the wife herself. Susanna emphasizes that if the issue of control is to be removed, both ex-spouses must be recognized as parents. Both Catherine and Judge Howard interpret the complaint commonly expressed by support payers that the money is being misspent or 'misappropriated' by the wife as 'a control thing.' Catherine explicitly specifies 'control over the money, not necessarily over the wife.' Judge Howard is not entirely clear about whether he means the money, or the wife, or both, when he says: 'Next to access, the other main excuse is not believing the money is being spent on the kids. It's almost comical. Even when the wife is on welfare. It's a control thing.' Malcolm postulates how money, wife, and children are connected when he describes the negative effects on support payments of a new boyfriend entering the scene: 'It's about control, not just over the money but over her and over the whole situation. 'It's a question of him having set up this nice little world for the kids and the wife and he was willing to pay as long as it was his way - It's not a jealousy thing, it's a control thing. They're living in a house he purchased for them, living on money he provides.' When Catherine refers to the men who say, 'She's got someone else now - let him take care of that,' she notes that this is a rationale where,

186 'Deadbeat Dads' in her view, a man has no moral grounding. This is because she rejects the morality and logic of patriarchy and the notion of the man 'taking care.' Both Catherine and Susanna say that many men are willing to contribute to their children either 'in kind' or according to their own decisions about when and how much to give. Though Susanna sees this as a defensible way around the resentment a man may feel at the perception that 'the money is being paid to her,' Catherine understands it as 'paternalistic/ as a way of keeping control of the money in his hands rather than hers. These last few examples indicate clearly that the desire for control is seen as a struggle to retain (or regain) control of a patriarchal kind. This kind of power comes as a matter of privilege to men within traditional domestic relationships, and is largely lost when the spousal relationship is terminated. Indeed, as we have seen, the most common outcome of separation is a reversal of the usual power relations between spouses. Most of the institutional informants are conscious, and wary, of the reaction many men have to this reversal. Dangerous Husbands

Several informants refer to the danger that many husbands present to their wives, in terms either of a threat of actual physical violence or of intimidation through their power in the pre-existing relationship. I have mentioned the references by Judge Marcus and Catherine to the ministry's adversarial positioning of wives against former husbands. Judge Marcus says that this worries him: 'The women get caught in the middle. Forcing her to come to court to file for enforcement is often to her detriment. Either the father will stop, or threaten to stop, seeing the children or she is afraid for her safety if he has been an abusive husband in the past. I get very upset about these cases/ Judge Howard explains that a significant number of couples must rely on the court system because mediation would be not be recommended for them: T had no idea until I became a judge about the extent of violence involved. The intimidation factor is so great in some couples that they just can't sit down at the same table. The new legislation that made FSP involvement automatic was very important in this regard. It helped to protect women. Of course, the new government may repeal this, but I think voluntary filing is not ok.' In other words, the judge is opposed to reverting back to a situation in which a woman might feel intimidated by her former husband into

How the Institutional Informants See It 187 refraining from registering the court order (or agreement) with FSP for enforcement purposes. The automatic nature of the legislation means that choice is removed from her; this renders her less vulnerable to her husband's reaction to the enforcement. The few explicit statements about violence in the data come from the judges, whose quasi-therapeutic 'problem-solving' discourse encompasses some aspects of family relationships, but whose role in the justice system mandates that they protect those who are vulnerable to violence. The possibility that the separation process will result in violence serves as a rationale for state involvement. Automatic, universal enforcement is one type of involvement; mediation and problem solving constitute another, quite different approach. The first tries to keep the couple at arm's length and render the relationship more impersonal; the second tries to personalize and resolve the transactions between the spouses. In a contrasting reference to the violence of postmarital relationships, Allan refers to mothers' use of their children as 'weapons of choice' in vengeful 'power plays' aimed at their former husbands. In such situations, too, the violence, which is not physical, is related to power. Here, however, it is the acquisition of power (by wives), rather than its loss (by husbands), that is seen as generating the violence. The Construction of Fathers as Citizens Because the system deals with enforcement separately from custody and access, and because other bodies from various social sectors (i.e., business, media, government) participate in the enforcement process, fathers are talked about as members of society in ways that are distinct from their role as fathers and former husbands. These discourses focus on rights and responsibilities with respect to society. Regarding how divorced fathers are constructed as citizens, two main themes emerge from the data: fathers as objects of enforcement (i.e., as 'criminals' under the system's scrutiny); and fathers as victims of the system. Fathers as Criminals under Scrutiny

The data offer evidence that fathers are thought of and positioned as potential criminals, not only to the extent that they are thought likely to break the law, but also to the extent that they are considered a threat

188 'Deadbeat Dads' to society. They are subjected to scrutiny by the state and society in a number of ways that suggest criminalization. As we saw in the chapter on legal texts, the law constructs fathers as debtors; but at the same time, the system's powers to enforce support payments are unique. Child support payments are treated differently from other debt obligations because of the particular moral obligation to children and also because of children's extraordinary dependence on the debtor. All of this is reflected more than once in the informants' discussions of the enforcement system. When explaining his support for tougher enforcement measures, Robert says: 'People don't realize the effect of not paying child support on the family. If these payments are being made, life would be much easier for everyone - payers, recipients, everybody else, taxpayers - in general.' Judge Howard defends the practice of automatic wage garnishment: 'Compared to the benefits to society of support being paid, the humiliation or embarrassment of these fathers is not important.' In both these examples, support debtors are positioned in opposition to society in ways that emphasize the risk they pose to society as a whole. The construction of the support debtor as a citizen whose behaviour threatens the well-being of society is used to justify society's extra efforts to gain his compliance. The informants' discourse seems to criminalize fathers. There are many examples in the interviews of the language of policing - a language that implies criminality. Judge Marcus explains how difficult it is for a judge to determine how much a self-employed man earns - a figure that is crucial to establishing the amount of support: 'We have no way to get the goods on them,' he says, and neither does FSP. Neither the courts nor FSP are mandated - or funded - to 'investigate' properly. In contrast, Malcolm - an ex-police officer - says in reference to fathers who default on support: 'They can't get away with it. I can't fathom how they do it. I know from being a cop how easy it is to get information on someone and track them.' It may not be surprising that defaulters are spoken of and responded to as lawbreakers. The fact that the Support Deduction Order is automatically put into effect positions even payors as lawbreakers. Judge Howard frames this as 'normalizing' - a positive feature of the system insofar as it does not set the defaulting father apart from the compliant father. He does not seem to recognize that what has been normalized is fathers' presumptive status as lawbreakers.

How the Institutional Informants See It 189 Peter offers the most dramatic construction of the fathers as "bad guys.' He begins the interview by saying: When this program first started, I thought I'd be perceived as the guy wearing a white hat. I was going to be on the side of the angels. That's how I thought we'd be perceived by the courts, the lawyers, and the recipients. But I've been rudely disillusioned. Q. What do you mean? A. No one likes us. The lawyers think we're intrusive, the judges think they did it better before. They think we take too hard a position, because we used to not negotiate... I believe in the program. I still believe what we stand for.

With the enforcement agency positioned as 'the guys in the white hats/ we are left to infer that there is an opposing villain in the scenario (the 'guys in the black hats'). If enforcement is 'on the side of the angels,' then on what side are the fathers presumed to be? Moreover, the reference to the 'right' or 'good' for which the agency 'stands' adds a moral purpose to FSP's legal one; this discourse positions the fathers as somehow immoral. In a parallel statement, Allan says he likes to think of himself as a 'champion' of 'difficult family law issues/ by which he means issues that 'happen to have been related to fathers' rights.' The coincidental images of cowboy and gladiator, each battling for what is seen to be the 'good' cause, revive adversarial discourse and reveal how some representatives of the system approach their roles. Now the adversaries are no longer just the spouses; the institutional agents take up the identity of contestants as well. Several other examples illustrate the criminalizing discourse regarding fathers and child support. Plan Administrator Robert explains how the system relies on 'outside information' from informants to 'track and locate' debtors in default. A 'hot tip' from a former spouse or her lawyer is normally the most helpful lead in this process, especially when there is no paper trail to a person's money or property (i.e., no loans or debts): 'And this is why we tell recipients: "You assist us with anything, we'll follow up."' The following excerpts are from the FSP publication Tips for Support Payors (Ministry of the Attorney General, 1993): By law, it is your duty to notify, in writing, the Family Support Plan

190 'Deadbeat Dads' within 10 days of the name and address of your employer whenever you change jobs. You must also notify the Family Support Plan of any change of address so our records can be kept accurate in case we need to contact you. [3]

The forms that each creditor must fill out as part of the filing package include a request for identifying information such as height, weight, eye and hair colour, and distinguishing marks. FSP's notification to support payers of arrears is also in some ways problematic. As we have seen, Robert reports that fathers commonly perceive FSP's notices as being 'too rough' because they are addressed as if they were 'deadbeats/ At the time of this research, the recorded telephone greeting at one regional FSP office announced: 'If you are a support payor, your call will not be returned.' A central number in Toronto was then given where an automated system could be reached. 'All others' were invited to leave a message. Robert confirms that support recipients, lawyers, another enforcement agency, or an employer can expect an answer. The decision not to accommodate calls from support debtors is consistent with policy. The reason? 'There's no point in [FSP] hearing what the payers have to say,' says Judge Howard, since FSP has no authority to address their complaints. This institutionalized dismissal of fathers contributes to a construction of them as somehow 'not as good as' other citizens. It literally denies them a hearing. Robert and Allan both claim that the media have promoted the 'deadbeat' image of fathers. Under the NDP government, the province conducted a media campaign against tolerance of non-payment of support. The ads emphasized not only the deprivation of the children but the extra burden on other taxpayers as a result of 'deadbeat dads.' Because the public has no direct constructive role in this matter, the only discernible purpose of the campaign was to marginalize the nonpayer, to create a social climate in which he would be seen as a bad father and a bad citizen. The creation of a negative social identity was supposed to motivate fathers to avoid marginalization by taking up the identity of 'good father' (i.e., one who pays). To some extent, criminalizing discourse is applied even to the employers of payers with Support Deduction Orders. They are referred to as 'income sources' by Robert and in all FSP literature. In an FSP brochure titled Directions for Income Sources on Making Support Payment

How the Institutional Informants See It 191 Deductions (Ministry of the Attorney General, 1992), they are addressed in the following manner: If your regular payments to the payor terminate or are interrupted due to lay off, leave of absence or a strike, the law requires you to write to us within 10 days. The same applies if the payor goes on Workers' Compensation or receives disability payments from another income source ... If regular payments to the payor start again, the Family Support Plan must also hear from you in 10 days ... An income source must give the Plan the name and address of a payer's new employer or income source if it is known. AN INCOME SOURCE MUST OBEY THE LAW. [emphasis in the original] Non-compliance with these obligations is an offence and could result in prosecution and a fine of up to $10,000.

The language is authoritarian and intimidating; resistance is anticipated and forestalled. Robert reports that small businesses are likelier than large ones to complain to FSP because they do not benefit from the mechanisms FSP uses to keep larger companies informed of changes in the law or FSP procedures (i.e., bodies such as the Canadian Payroll Association): The small businesses have to get their information by calling in and having things explained to them. Some of them complain, "Why is the government harassing me?" Our response to that is to try to calm them down. Usually we get cooperation by telling them "This is the act and you have to comply.'" For larger businesses, then, the involvement is collaborative; for smaller ones, it may be more coercive. In the brochure made available to 'income sources/ employers are also warned that it is illegal to 'dismiss, discipline, suspend, intimidate, coerce, or otherwise penalize an employee' on account of a Support Deduction Order (Ministry of the Attorney General, 1992: 9). Robert says, however, that when the employer breaks this law, the employee is on his own: 'We do get such complaints but usually it can't be proved. And anyway it's a legal question, and how do we go after them? Do we have that authority? It's not in our mandate. In those cases where there is ample proof, the support payor must take the initiative himself to follow up through the Ministry of Labour as a case of wrongful dismissal.'

192 'Deadbeat Dads' Both the language used by the speakers and the practices they describe depict a system in which fathers are impersonally processed (i.e., monitored, categorized, and labelled) by a highly bureaucratic system operating with the cooperation of the community. This is most striking in Robert's interview. In two-and-one-half hours, he referred to fathers as 'payers/ as 'debtors,' and occasionally as 'non-custodial parents,' but never as 'fathers.' (The informants other than FSP personnel tend to use a mix of the financial categorizations, along with 'fathers' or 'parents.') Robert focuses solely on procedures, lines of authority, statistics, and matters of institutional jurisdiction; as a result, the social context of divorce and the identity of payers and recipients as fathers and mothers are both obscured. He explains how computers keep track of remittances by payers or their income sources and indicate when a payment has been missed. An individual who defaults on part or all of a payment, or who pays late, is automatically categorized as in arrears. Monitoring procedures are unable to distinguish between various levels of default. Enforcement procedures can be initiated only against a person with a known address for himself or his assets. An individual identified by the system who is in arrears for one or two payments may therefore be pursued aggressively, while one who has never paid a penny will not be pursued if no information on him has been supplied. It is obviously much easier and more practical to obtain information about a salaried employee (and to garnish his wages) than about a self-employed individual. In other words, a father is likely to be criminalized on the basis of employment status and available information rather than on the seriousness or persistence of the offence. Administrative practices, not necessarily the behaviour of the debtor himself, produce the identity of criminal. Consistent with Judge Howard's call for 'the machinery of the entire society' to be marshalled in the interests of support enforcement, Judge Marcus proposes a solution to the problem of self-employed fathers who avoid wage deductions and can hide part of their income: The entire taxation system needs to be changed so consumers of services and goods share some of the burden by having a legal obligation to report individuals who offer to accept cash for work done, or who do any type of under-the-table deal. Because people who accept such conditions in their own interests are party to the problem and should have a legal obligation to bring tax-evaders to the attention of government. That way it would be

How the Institutional Informants See It 193 easier to trace people's incomes and compel them to pay what they ought to be paying.

In chapter 4,1 referred to the legislation that permits various government bodies to share data with FSP to help locate defaulters and their assets. Robert describes how various government, commercial, and judicial entities already cooperate in the support deduction enterprise. Some large companies have a special payroll system designed to handle monthly support deductions collectively when a substantial number of employees are under deduction orders. A variety of arrangements exist for simplifying mutual access to data banks, including a pilot project in which FSP data are made available at local courthouses. FSP lawyers meet with local judges, lawyers, and even provincial politicians, so that all can understand the enforcement process and support it as needed. For example, many individuals (both recipients and payers) contact local MPPs' offices to inquire or complain about support. FSP hopes that if the MPPs are kept informed about FSP requirements, procedures, problems, and so on, they will be able to respond to these calls knowledgeably and effectively without overburdened FSP personnel ever having to be contacted. The enlistment of the wider community in aiding enforcement procedures intensifies the sense of a public threat requiring mobilization of enforcement as a defence. Despite the 'machinery of society' already in place to deal with enforcement, judges and FSP personnel wish that additional powers were available so that they could locate and monitor individuals more effectively. Judge Howard wishes the enforcement agency had 'real powers, like they do in the States or in Alberta/ such as the right to withhold licences: 'Just the threat of withholding or suspending all kinds of licences is generally sufficient. There have been some studies done and the statistics show that very few have actually had to be suspended.' (Ontario has subsequently introduced this measure.) He hopes that at a minimum, the Department of Justice will make additional databases, such as Revenue Canada's, accessible to FSP. Robert shares this hope. The term 'criminalization' may seem like an overstatement, but the tendency to monitor, pursue, label, marginalize, and coerce fathers who are obligated to pay support does belong to a discourse that is normally associated with policing people who at some level are considered deviant or a threat to society. Their status as members of society and their identity as 'good citizens' is challenged or even displaced by the identity of 'bad guy.'

194 'Deadbeat Dads' Fathers as Victims of the System Alongside the 'father as criminal' discourse, another has gained prominence, which constructs fathers as victims of the system.7 The institutional informants identify a number of problems in the system, many of which are perceived as disadvantaging support payers, especially those who are fathers.8 These problems can be grouped roughly as follows: • The system is complex. • The system lacks responsiveness. • The system is inconsistent in establishing and enforcing the amount of support. • The system is underfunded. • The system is biased. Complexity of the System The system itself is described as so complex, so regimented, and so opaque that lay individuals - whether mothers or fathers, recipients or payers - depend heavily on lawyers to guide them through it. Judge Marcus says that when individuals appear in his court without legal representation, his task as a judge changes. He must function in these instances 'more like a mediator, because a family law trial is less about law than it is about mediation ... The court system doesn't work for people who aren't represented. An adversarial system can't work for people who don't have lawyers to help with the huge mass of procedural rules, and all the fine points of the law.' Malcolm explains that 'do-it-yourself divorce kits,' which are meant to enable individuals to handle their own separation or divorce without yielding control and money to professionals, are not as easy as they seem: It doesn't deal with the fact there are differences from courthouse to courthouse, and from judge to judge, let alone differences between provinces and local jurisdictions. One judge in this jurisdiction, just to give you an example, won't accept photocopies. Only carbon copies. It means that people really do need some kind of representation or assistance or they are going to end up frustrated, confused, and ill served by the system.

How the Institutional Informants See It 195 Yet even though lay people depend on their expertise, lawyers and even judges are repeatedly described as ignorant of the intricacies of support law enforcement, and as unaware of the ramifications pertaining to other areas of law, and even of the jurisdictional issues involved in the split between the two divisions of the Provincial Court and the provincial/federal legislation pertaining to separation/divorce, custody/access, and support. Marie, Peter, Allan, and Judge Marcus all talk about how complicated this area of law is and how few lawyers and judges have actually mastered it. As a direct observer, I watched Marie deal in court with a series of cases in which the defending lawyers had either erred in matters of law or had brought the matter (and the client) to the wrong court. I later asked her whether she ever feels that she is in the position of having to educate lawyers. A. Yes. Not only don't they know FSP law, they often don't know the law about jurisdictions generally. That's a problem particularly in an area like this, where most of the lawyers are generalists. Q. What about the FSP publications I've seen especially for lawyers? A. None of these lawyers would have read those. But you know, not all the judges know the law very well either. I've had orders made in one jurisdiction that a judge in another jurisdiction said was 'totally wrong' and not within that judge's power to make. He even called him to tell him.

When I comment to Judge Marcus that many of the lawyers in his court seemed not to know enforcement law and jurisdictional issues very well, he replies in a rather offhand way: "They don't. Neither do judges/ After explaining how different levels of the courts handle different areas of the law, he goes on to say: 'In the so-called "Higher Courts" family law is considered the least appealing, the lowest type of law. The judges in General Division hate family law. They'll do anything to avoid making decisions on family law matters. And they're very bureaucratic, very formal. They really stick to procedure.' Allan concurs. He claims that General Division judges are 'snobs' about Family Court and enforcement law and don't bother to learn it thoroughly. On the other hand, Peter's explanation for lawyers' apparent resistance to mastering enforcement law, despite FSP's efforts, is, They think it's intrusive.' 'Do you think it is?' I ask. 'Sure it is,' he says. Another theme introduced indirectly by the informants in these

196 'Deadbeat Dads' comments is that judges vary in their practices and competence levels. The suggestion is that rulings are based partly on judges' idiosyncracies. The roles of the system's agents are so complex that consistency and reliability are difficult to achieve. Depersonalizing, Unresponsive System

The court system and the bureaucratic, highly automated FSP system are characterized as depersonalizing, and also as unresponsive to both mothers and fathers, though in an apparently more deliberate way to the latter. At an educational seminar for family law lawyers that I attended, the Director of FSP described FSP as 'a volume agency' with procedures that require close adherence if support orders are to be properly processed. The director explained that 'customized' orders cannot be interpreted because FSP has no mandate to 'look behind the order'; in addition, flexible agreements cannot be processed by the FSP's computerized system. The sense of FSP as a volume operation is supported in the statistics Robert cites to convey the agency's enormous undertaking in his region: 'Within this region there are nine judicial districts. They handle thirty Provincial Division courts and nine General Division courts, thirty MPP constituencies and 23 per cent of the area of the province. Because we cover such a large area, people do not get the service that they want like this, [snaps his fingers] immediately. So they often will call their MPP.' He goes on to say that with only three staff lawyers and several local lawyers assisting, his office handles 275 to 325 court appearances monthly. Each enforcement team of four or five people carries 1,500 to 1,700 cases at a time. Approximately 1,200 inquiries and advisories come in each day: on average, 1,000 pieces of mail and 200 faxes. About 700 pieces of mail go out daily. The phone system (which will not return payers' calls) and the central inquiry number (which often does not answer anybody's calls because it cannot handle the volume) have already been discussed. Robert says that up to 200,000 calls may be received provincewide in a 'normal month,' with nine staff to handle them.9 Judge Marcus says: 'The fathers in default tend to be extremely frustrated with FSP, and often quite angry. I am actually sympathetic. I think FSP is unresponsive and frustrating. I often hear the complaint that payers are unable to get anyone at FSP to return their calls when they have questions, or when they want to explain a situation when there is a problem.'

How the Institutional Informants See It 197 The FSP brochure offers the following advice to payors about communicating with FSP: a) ... Always refer to your Family Support Plan case number ... b) Automated information about your case can be obtained by telephoning the Central Inquiry Service... c) ... If you have an urgent problem, speak with one of our operators and they can relay a message to the Family Support Plan Office where your case is registered, [emphasis in the original] • The Central Inquiry Service responds to more than 13,000 telephone calls every day. If you have difficulty reaching the 1-800 Hotline, please be patient and try again a little later. Better yet, send a letter or FAX to the Family Support Plan Office where your case is registered. We get many letters and faxes and we cannot respond to you in writing. However, all information is reviewed and acted on.

Though it attempts to offer sympathetic, helpful hints, the message conveyed is that FSP is overwhelmed and underserviced; thus, individuals should not expect to deal with informed individuals, and should not expect any feedback regarding inquiries or complaints submitted. Judge Howard recalls that when he worked with FSP, the need to demonstrate enforcement effectiveness dominated his perspective: I used to worry about the statistics. I think I allowed it to cloud my ability to understand what a hardship a 50 per cent collection rate on arrears could create. If the law allows you to take 50 per cent, I used to feel, you take it. Now that I have closer exposure to it, I feel differently about it. I guess I'm more compassionate to the payors now. I understand what it costs to live. When you hear how hard it is for some people, my attitude now [as a judge] is to find some way to give him some relief.

Here, the judge is offering an important insight into how FSP's bureaucratic, automated operations support its narrowly focused mandate of aggressive enforcement. Depersonalization is built into the system, and this makes it relatively easy for FSP personnel to take a hard-line, 'uncompassionate' approach to defaulting payors. Noncompliance ends up being judged in black-and-white terms and addressed as an issue totally removed from the context of a man's life. The discourse of human experience is omitted; the discourse of bureaucratic functioning and enforcement drives the process.

198 'Deadbeat Dads' Judge Marcus claims that some FSP personnel and some judges treat fathers in default 'with a lack of respect' when dealing with them personally. Judge Howard also concedes that fathers may be poorly treated around support matters: 'Let's face it. There are a lot of tired, overworked judges who are poorly behaved. They're tired of the whining, and they have lost patience with these guys. But you have to be careful about taking these fathers' stories at face value. Remember, it's their perception.' Judge Howard's concession around 'poor behaviour' in the judiciary is immediately qualified: fathers may perceive such behaviour even when it is not actually present. This judge is ambivalent, both about the fathers who appear before him and about how they are positioned by the system. He tries to acknowledge the contradictions without being disloyal to the system, letting fathers off the hook, or being uncompassionate himself. In short, he tries to juggle the conflicting constructions of father as 'bad guy' and father as Victim.' As Robert and Judge Marcus point out, FSP's written communications with payors are a particular problem. Robert's comments about how fathers perceive the 'rough language' of FSP letters were discussed earlier. Judge Marcus has a different complaint about the letters: 'Have you ever seen one of the letters FSP sends to these guys? [gesturing to show something long] It's not just a few lines. It's a whole complicated thing. They don't know what to do with it. And it's all in caps -1 personally find caps very hard to read. And it's in French and English. It's very confusing. Some of the people in my court can't even read.' This surprisingly concrete and pragmatic comment suggests strongly that the material is intimidating and does not achieve its advisory purpose; it also suggests that FSP has failed to understand the needs of its clientele. In contrast, the judge seems to be trying to identify with the people who come before him. He explains that as the only family court judge in his town, he gets to 'run my own show.' In this relatively small community, I am working with lawyers who are part of the community together. It makes a big difference in my ability to exercise flexibility and take a problem-solving approach. The lawyers here are receptive and cooperative about dispensing with unnecessary bureaucratic requirements that would prolong the time it takes to work things out. You can spare people a lot of unnecessary hard-

How the Institutional Informants See It 199 ship and inconvenience if you're willing to do that. That's how I manage to bend the rules and get around some of the procedural things.

Here he distinguishes, much as Judge Howard does, between his own resolution-focused approach and the 'legalistic/ 'formal/ and 'bureaucratic' approaches of other courts and of FSP. Both judges present themselves as resolving 'central underlying conflicts/ as opposed to impersonally processing people according to strict procedures. Each clearly perceives this as a preferable mode of practice. Lack of Consistency

Another difficult area in the system relates to the lack of consistency in setting and enforcing support. Peter says that 'General Division judges are out of touch' and tend to set support too high; yet Marie claims that family court judges tend to be 'too soft about enforcement/ According to Judge Howard: 'Some judges are much tougher than others when it comes to support. There's one in Toronto at 311 [Jarvis Street] who sends them straight into custody.' He also notes that judges do not have the power to rescind arrears or to vary the original order. Apparently, some FSP personnel are 'tougher' than others. Judge Howard wishes there were more 'tough' lawyers like Peter at FSP. Being male helps, too, he says; that way the payors in default 'don't talk back' as much. Peter says of himself that he is especially 'cynical' and will not negotiate because 'I put support ahead of everything.' As we saw earlier, both Allan and Malcolm seem to feel that FSP does its job aggressively and adequately. On the other hand, Judge Marcus describes Marie as 'pretty soft/ and both Robert and Judge Howard wish FSP had greater access to information databases in order to improve the effectiveness of enforcement. A number of reasons for inconsistent enforcement are offered. One, discussed earlier, is lack of information for follow-up. Judge Marcus emphasizes the difficulty of ascertaining the actual income of a selfemployed person. 'You almost have to guess/ he says. Allan focuses sharply on the issue of judicial discretion. He complains that 'unprincipled decisions' made by judges based on 'personal bias' lead to inconsistency and unfairness in the system. Catherine, on the other hand, targets lawyers rather than judges: There's only so big a pie that you have to divide up. In these recessionary

200 'Deadbeat Dads' times, judges divide the given pie, so orders get smaller and smaller. Their hands are tied by the size of the pie. It's up to the lawyer for mum to question the pie presented and to insist on full and accurate disclosure. In my experience, the judges' distribution of the pie is fair. Now, maybe where mum's counsel appears to have been remiss, the judge should insist on it. Judges would argue, I think, that that would be going beyond their role. That's counsel's role ... Before lawyers blame judges, they should think about what they're doing in court. At one time, a major reason for the inconsistency was the absence of uniform guidelines for calculating support; these have since been introduced (in 1997) by the federal government. There is at present a debate over which is preferable: guidelines or formulas, or a case-bycase approach. Both Judge Howard and Judge Marcus favour a standardized approach; Allan favours an individualized one. Judge Marcus: I wish there were one uniform formula in place for deciding on the amount of support. In my court we go by a rule which basically says support should be 1 per cent of gross income. There are lots of formulas, but we need a single one, preferably where you could punch the information into a computer and it would generate the amount of support. Of course, it would have to take into account various conditions, but that would be better than a human being issuing the decision. Judge Howard: A lot of judges feel that support guidelines would reduce hostility on the part of fathers. I think that's probably true, but I think that the initial draft guidelines are too low. But you should know that a lot of judges are opposed to guidelines because of how different people's individual circumstances are in terms of their needs and their previous lifestyle. Q. Where do you stand on this? A. I myself feel guidelines would be great as a starting point, but there still needs to be judicial discretion. What we call 'a presumption that can be displaced with evidence.' Allan: I think case-by-case is preferable to formulas.

How the Institutional Informants See It 201 Q. That doesn't seem to fit with what you've said about the way some judges misuse their discretion on the bench. A. Yeah, I suppose. Q. Is it a trade-off, then? A. Yes.

In weighing consistency against individualized consideration, the elements that require balancing are fairness, equity, adherence to legal principles, responsiveness to individual circumstances, adequate factual evidence, and the recipient's need for support. Judge Howard's reference to 'previous lifestyle' and 'individual circumstances' is about seeking to maintain flexibility for the sake of accommodating differences. Judge Marcus's preference for a computerized formula that would remove the human element from decisions seems at odds with his otherwise non-bureaucratic, individualizing approach. Whether a judge or an FSP lawyer is too 'tough' or too 'soft' seems to have as much to do with the speaker's subjectivity as with the behaviour of the individual. Funding Issues Another criticism of the system is that it is underfunded and lacks resources. This applies mainly to FSP, but also comes up with reference to other parts of the system. Underfunding is seen as affecting the system in the following ways. 1. A lack of resources at FSP. This manifests itself as a shortage of investigative personnel and poor communication with the public. According to Judge Marcus, the greatest consequence of this is that FSP sometimes takes so long to 'catch up' with payers that an overwhelming amount of arrears accumulates. By that point, the individual in default 'feels that after not paying for so long, it's unreasonable for them to come after him the way they do. Especially if there has been no access for some time or if the children have actually grown up or left home ... I think that if they could intervene immediately - you know, after one missed payment - the accumulations would not build up in the first place.' Plan Administrator Robert provides several statistics to indicate that his office handles an enormous and growing caseload on a limited budget. Judge Howard identifies the 'communications problem' at FSP

202 'Deadbeat Dads' as a result of the agency being 'underresourced.' He reasons that FSP is underfunded because 'no one ever anticipated the volume' of clients, especially those who 'need to talk.' He admits, however, that his own choice in the past was to direct all additional funding into enforcement rather than into extra staff on the phone lines. 2. Lack of Legal Aid funds. Judge Howard says that this has become a problem insofar as there is less funding to pay for duty counsel to represent those who are unable to afford private counsel. Judge Marcus is worried that Legal Aid funding will be directed increasingly away from family law. Catherine's concern about Legal Aid funding focuses on blood testing where paternity is in dispute. It's fair to say my client base tends to be dependent on Legal Aid and is very affected by cuts. Blood tests aren't paid for anymore. So disgruntled fathers who are questioning paternity - sometimes on a fairly flimsy basis - blood testing could make the difference between willingness to pay and non-willingness ... The bottom line for clients like this is that they feel the system has failed them. An essential component of his legal representation has been eliminated when funding isn't given for blood testing.

3. The ministry's need to recover welfare expenditures. When social assistance is required for children and mothers, the ministry is likely to exercise its right as assignee to pressure the father to pay as much support as he can back to the ministry. 4. Not enough supervised access centres. These are needed when a child's visits with a non-custodial parent might otherwise be untenable (e.g., where the parent is abusive). These were considered unlikely to survive social spending cuts. (In fact, the program has been expanded in recent years under the Ontario Attorney General's Office.) 'If supervised access centres are cut/ says Judge Howard, 'it means that a solution available to many fathers is no longer available. At one centre the waiting list is already nine months.' Underfunding has several consequences. Mainly, the quality of justice attained - or perceived as attained - is affected for those who depend on that limited funding.

How the Institutional Informants See It 203 Biases in the System Finally, the informants' data reveal several perceived biases in the system - biases based on class, race, culture, and gender. The class bias emerges most clearly around funding issues. Obviously, those on welfare, those eligible for Legal Aid, those who require duty counsel, and those who cannot afford the fee for blood testing (nearly $700 at the time, according to Catherine) are most likely to be affected. Even when Legal Aid assistance is available, there are questions about the quality of representation. According to Catherine, 'the bulk of family law is Legal Aid cases at Provincial Court level, and the bulk of family law is provincial. Provincial court is market justice. It's McDonald's justice; it's not well-considered.' Judge Marcus refers to illiteracy among those who appear in his court and to the disadvantages they face in a system that uses legalistic documentation. The majority of people in his court, he says, are 'not high earners and do not have advanced education/ He also worries about welfare-dependent couples who decide to separate in order to qualify for the higher rate of social assistance provided when spouses live separately. In some cases, he says, siblings are split between parents to raise welfare eligibility even higher. According to Judge Howard, support defaulters come from all classes. He does not say whether their numbers are proportional to their distribution in society. He makes the point that 'lawyers, judges and other professionals are on the FSP caseload too.' Similarly, Judge Marcus draws my attention to a default case that appeared before him the day I was an observer in his court, noting that the man in question is 'the most successful [service industry agent] in town.' Not surprisingly, cultural biases in the legislation are mentioned most often in the interviews of Susanna and Catherine. As West Indian women with many West Indian clients (and, in the case of Susanna, also Latinos and other immigrants), they are the ones most likely to be aware of the cultural differences that can easily place some people at a disadvantage in their dealings with the system. Differences in definitions of family, and in expectations regarding a father's obligations, and reliance on extended networks of kin to help single mothers raise children, are all elements that may be at odds with the expectations placed on fathers by Canadian law and dominant cultural norms. To many who are new to Canada, the degree of state involvement in post-

204 'Deadbeat Dads' marital matters - especially support - also comes as an unwelcome surprise.10 Only Catherine speaks directly about the issue of race. For Susanna, racial matters are fused with cultural ones, and the other informants all of whom are White - don't refer to racial differences at all. Catherine, on the contrary, is emphatic about the central importance of 'a race and class analysis' to my inquiry. She says her clients are likely to feel that 'the system has failed them' when race and class intersect around the issue of Legal Aid dependency. She also implies that when the courts 'sidestep' the issue of paternity, their belief that it is more germane to one racial community than another manifests a stereotype that the system holds. The suggestion of bias that comes up most often in the institutional informants' data is that of a pro-woman bias in the system. Allan's view on this issue is the most extreme. His accusation that judges make 'unprincipled' decisions refers specifically to the MacGyver case, the ruling that favoured the custodial mother's mobility rights over the non-custodial father's right of access. He makes the point that decisions like these are influenced by the judge's personal biases and are not based on legal principle and judicial precedent. He insists that he works without personal bias and solely on the basis of the law, professional experience, and the client's needs. Allan also talks about a judge who is said to proudly admit that he makes the 'highest possible' support awards; Allan calls that judge pro-mother. He declares that he has 'never met a judge who was pro-fathers.' (This recalls Marie's perception that judges are unduly sympathetic to men in default only because the women tend not to appear before them.) Allan also blames politicians and the media for fostering a bias against fathers. Robert levels the same charge. Susanna's observation, cited earlier, that 'right now it seems that the state is for women and not necessarily for men,' is made in the context of how the system treats fathers generally, and alternative approaches for getting fathers to pay. It follows a series of examples of how some fathers resist payment for irrational reasons, and how the system 'just is not working. It's not working for the children.' Her concern is that fathers often feel - with some justification - that they are not given adequate 'recognition' by the system, and that only mothers are valued as parents. Judge Howard makes several illuminating comments about the system's orientation to women: "The support issue didn't become impor-

How the Institutional Informants See It 205 tant 'til women judges were on the Bench ... Too bad the judges picked it up as a women's issue. It's a children's issue.' Yet the same judge talks about the impact of MacGyver as a father's issue. (This is the ruling that Judge Howard says renders non-custodial fathers 'powerless' and contributes to 'loosening the bond' between fathers and their children.) He acknowledges that judges who 'summarily dismiss' access as an issue when fathers raise it in conjunction with support matters are 'treating fathers badly.' Catherine, Malcolm, and Judge Marcus make no references to systemic gender biases. Peter speaks from the position of a bias in favour of support recipients: 'nothing comes before support'; 'I still believe in what we stand for'; 'we were going to be on the side of the angels.' He never identifies recipients as female, or payers as male. Summary The institutional agents who interpret the legislation governing separation and divorce draw on many discourses and also employ a wide variety of practices. The logic or discourse employed by a given institutional agent seems to depend partly on the institution he or she represents and partly on his or her own social location and subjective stance. The FSP administrator focuses on the functioning of the enforcement system rather than on the people who are its clients. He accomplishes this by adhering fairly strictly to bureaucratic discourse. He sees the institutional enterprise as administrative, and he employs a highly bureaucratic discourse that is depersonalizing. This serves to diminish the discourses of caring, responsibility, needs, and so forth. The FSP lawyer does not speak as a bureaucrat and does not employ administrative discourse; rather, he uses mainly moral and combative discourses. He takes an adversarial approach and sees himself and the institution he represents as the 'good guys' in a contest that he understands as essentially moral. Payers in default are the implied 'bad guys/ and so are the judges and lawyers who criticize FSP for being 'intrusive.' Parents are constructed as debtors and creditors; taxpayers are constructed as stakeholders. Children are virtually absent from the discourses of FSP personnel. The family court judges see themselves as progressive, insofar as they employ a case approach and the humanistic discourse of family relationships rather than formal and adversarial discourses. Ambivalence is evident in their attitude toward fathers. They demonstrate a

206 'Deadbeat Dads' certain degree of empathy and concern for fathers' positions when they employ the discourses of family law; in that context, they construct fathers as caring parents. Yet when judges use the discourses of debtor-creditor and enforcement, they talk about fathers as potential criminals who are trying to defraud the system. Competing constructions of fathers appear and disappear as they speak. The community lawyers employ discourses of law and justice to focus on underlying 'principles/ with some interesting differences between them. Allan, the fathers' rights lawyer, is similar to the FSP lawyer in seeing himself as a 'champion' in the contest between spousal adversaries, not just on behalf of fathers but on behalf of the law. He talks exclusively about justice within a legalistic, adversarial frame of reference. Consistent with this stance, he makes not a single reference to the discourse of 'needs and means.' Fathers' inability to pay is excluded from his justice-oriented discourse, even though it is virtually the only legally acceptable reason for non-compliance with a support order. In short, he sees fathers fighting for their rights, not for their wallets. In contrast, Catherine, the feminist immigrant lawyer from the Caribbean, whose social location is less privileged than Allan's, mixes discourses of race and class with a discourse of justice that is grounded in a moral frame of reference. Children are absent from Allan's discourse as he focuses on fathers' rights; but they are present in Catherine's discourse as the focus of fathers' struggle for both justice and power. These two lawyers identify gender and power issues in strikingly different ways. The feminist talks of inequalities in terms of patriarchy, classism, and racism; the male lawyer talks in terms of quasi-therapeutic interpretations of women's power to wreak revenge on former husbands. As might be expected from their professional orientation, the mediators concern themselves mainly with the children's well-being and with the experiences of the parents, through a discourse of relationships, needs, and feelings. They identify the system's legalistic, adversarial and debtor-creditor discourses as creating problems for families. Both mediators identify issues of gender politics, and the woman mediator, who is an immigrant to Canada, identifies cultural issues as well. These logics and discourses sometimes overlap and often are ambiguous or contradictory. In turn, they produce a number of identities for fathers that are also overlapping and at times ambiguous or contradictory. These identities variously construct fathers as 'good' or 'bad' (i.e., as caring, or as neglectful and concerned more about money than about their children), as dangerous or controlling ex-husbands, and as

How the Institutional Informants See It 207 debtors or 'bad guys.' Fathers tend to be marginalized within their own families and as members of society in general. In addition, institutional practices create a space where perceptions of devaluation, injustice, and criminalization could produce in fathers the subjective experience of victimization. There seems to be consensus that there are indeed 'good' fathers and 'bad' fathers; however, it is not at all clear what makes a father 'good' or 'bad.' All the informants agree that a good father is one who pays, and all of them approve of the law's intent regarding separating support from access; that being said, in the lives of real fathers a great deal of ambivalence emerges about the relationship between support and access. Nearly all the informants acknowledge that parents make a connection between being able to see the child and being expected to support the child. When access is constructed as an opportunity to maintain contact with the child, it is seen as a sign of caring. When access is viewed as a proprietary right linked to the obligation to pay support, access claims are no longer regarded in the same moral light. The system is designed in such a way that demands for access fall outside the law pertaining to support. None of the informants is able to suggest how to resolve the moral dilemma created by situations where fathers must pay support but access to their children is problematic. A father who pays regardless of access is constructed as occupying higher moral ground than one who demands reciprocal access. Fathers who resist paying support for the same reason they do not pursue a relationship with the child (i.e., an absence of commitment) are considered in violation of both the law and conventional morality. Thus, fathers tend to be constructed as providers whether they do it because they care, or despite not caring. In other words, whatever else they may wish to experience as fathers, they are expected to pay. The progressive view that fathers should be recognized as contributors to a child's healthy development and encouraged to make that contribution even after separation, competes with the view that involvement is secondary to payment. At FSP there are officially neither 'good' nor 'bad' fathers, only debtors in compliance or default. It is the media and politicians who, according to FSP officials, apply the term 'deadbeat' to defaulters. Ex-husbands also tend to be seen as financial providers for their exwives. The FSP informants, the feminist lawyer, and the two judges express great concern about the economic vulnerability of women who are raising children. The latter three also express concern about the physical vulnerability of these women. Their focus is on getting the ex-

208 'Deadbeat Dads' husband to fulfil his obligation to provide for his ex-wife, who is often unlikely to be able to support herself. All except the fathers' rights activist construct the ex-husband as a kind of bully, who withholds financial support or threatens the woman's safety because of his desire to regain the control he has lost over his wife, his children, and/or his money. In contrast, the fathers' rights advocate sees fathers who withhold support in order to regain control as victims of an unjust system employing a legitimate strategy to recover their rights. State enforcement of child support constitutes a large part of the legal processing of separation, which transforms the private relationship into a public issue. The informants implicate almost the entire society in the task of getting fathers to pay. This is because they see society as threatened by non-compliant behaviour and as responsible for solving the problem. The most striking illustration of the father being constructed as a threat to society is the system's inability to distinguish between 'good' and l^ad' fathers on any basis other than complete and timely compliance with the support payment regimen. Identifying debtor fathers as marginalized citizens may help enlist community support in dealing with issues of compliance. When fathers are marginalized, they tend to be made the 1bad guys' in the contest. Because children tend to disappear from the formal systemic discourses, the system then seems to be allied not with the children, but rather against the debtors/fathers and with the creditors/mothers. All the institutional informants see the system as seriously flawed, but the flaws they identify tend to be in locations other than their own. No part of the system is left uncriticized. All the parts are implicated as contributing to mistrust, to the struggle for control between former spouses, and ultimately to the problem of non-payment. Although FSP tends to construct non-custodial fathers as the 'bad guys,' the other informants point out ways in which fathers are also victims. The fathers' rights advocate sees non-custodial fathers as victims of unprincipled judicial decisions and a system generally biased in favour of women; one judge and another lawyer see some fathers, especially poor ones, as victims of a seriously flawed justice system. One judge acknowledges that non-custodial fathers have been disempowered as parents by the law and that their attachment to their children and their potential as nurturers have been devalued. Gaps and inconsistencies in the system, as well as between the system and the law itself, leave room for perceptions of injustice and victimization.

6

Putting It All Together

The question that launched this project was: Why have we been so unsuccessful in our efforts to get non-custodial fathers as a group to be responsible for the financial well-being of their dependants? How are we to interpret the fact that many fathers respond to the identity of 'deadbeat' by claiming a victim identity instead of behaving as responsible providers? The questions that guided the analysis were as follows: • What are the themes and constructs through which the fathers in the sample present themselves? • What are the constructs of fathering and family that the state makes available in the context of divorce and separation? • How are these constructs viewed and interpreted by the institutional agents who interact with the fathers and represent the state to them? The research findings presented in the previous chapters have been organized to respond to each of these questions. In this chapter I address a final question: How do the constructs of fathering and family in the fathers' talk reflect the competing discourses about postmarital fathering and fathers' attempts to adopt or resist the identities produced through the legal system and its interpreters? The examination of legislation and procedures governing divorce in Canada (in Ontario particularly) reveals that the justice system is mandated to regulate the divorcing family's social and economic reorganization and thus its power relations. More and more emphasis has been placed on the extra-judicial enforcement of economic support for chil-

210 'Deadbeat Dads' dren and for any spouse who is unable to become self-supporting. The relevant legislation, case law, and enforcement procedures develop new constructs of fathering in the context of current social conditions; these serve as fragments of identity available to fathers. The dualistic nature of constructs such as 'good father versus 'bad' father, breadwinner versus debtor, and victim versus 'bad guy' blurs our understanding of what a 'good father' is. As well, there are various contradictions, both subtle and obvious, among these constructs. In their 'activation' or interpretation of the law, institutional agents sometimes contradict and sometimes intensify these constructs, as they pick up on some and ignore others. Within the body of law pertaining to divorce, support, custody, and access, there are tensions between reality and the idealized construction of marriage and family. These are also tensions between the law itself and the manner of its application. Central Discourses The constructs of fathering and the themes that run through all data sources are found embedded in competing discourses relating to the family, parenting roles, and the relationship between family members and the state. The following summary of these discourses makes it clear that a significant degree of ambiguity and unpredictability is inherent in the system: • • • •

The private family versus state/societal responsibility for the family. Family law versus family problems. Abstract universal rules versus contextualized, 'local' judgments. Gender neutrality ('modern' marriage) versus patriarchal relations of gender inequality ('traditional' marriage). • Individual rights and fairness versus responsibility/care for others. These competing and often overlapping discourses represent particular ideological approaches to their subjects. Like cookie cutters that stamp shapes in sheets of dough, discourses shape how we think about subjects (Rossiter, 1988). As the law is activated, discourses are made available to fathers that reflect particular ways of thinking about family, parenting roles, and their relationship to the state. The liberal discourse of individualism and 'equality' gives shape to the modern model of marriage and to expectations of complete independence following separation, equal responsibility for supporting children, and

Putting It All Together 211 self-sufficiency for separated wives. This accomplishes a shift away from thinking about the family as being related through special ties and responsibilities (e.g., father as caring, moral parent) toward thinking about it in the context of civic relationships (e.g., father as debtor). The discourse of 'debtor-creditor' organizes both the economic and the policing aspects of this relationship. Financial, contractual relationships lend themselves far more readily to regulation than do emotional and biological ones. Issues of rights and civil obligations are more congruent with this discourse than questions of child welfare and moral responsibility. As defined by the discourse of traditional fathering, a good father pays his debts and need show little more than the interest of a 'pal' in his children; as defined by the discourse of egalitarian parenting, a father must demonstrate caring and moral responsibility by making sure the child's material well-being is looked after and by maintaining an active, nurturing relationship with the child. Within one framework, he may protect his rights; within the other, he is expected to put his child's needs before his own. In egalitarian discourse, a bad father is uncaring and uninvolved and fails to recognize or adequately consider his child's needs; in traditional discourse, a bad father is a 'deadbeat.' As defined by egalitarian discourse, the 'social problem' is that children's welfare is neglected; as defined by other discourses, it is that a support order is not being complied with, or that the opposing parents are struggling for their rights. One discourse engages fathers' sense of moral responsibility and caring; the other enforces payment. At a broader level, the construction of the self-sufficient family - the family as a primary economic unit - reflects a fundamentally patriarchal discourse. Within this discourse, society as a whole does not assume primary responsibility for the welfare of women and children. The solution that has been arrived at - enforcing support by non-custodial fathers - is an expression of the patriarchal family model (Pulkingham, 1994, citing Eichler) insofar as it continues to hold the father responsible for the family's economic well-being. (The aspect of this model that becomes more visible in the context of divorce is that even as he is required to continue being a material provider, the father's normally marginal role in the family becomes even more marginalized, with the usual compensating rights and privileges largely removed.) This is a 'residual' approach to family support (Pulkingham, 1994) that is, the individual family is positioned as having primary responsibility for its own well-being, with the state filling in as a 'last resort'

212 'Deadbeat Dads' and only to a minimal standard. Within this framework, women remain dependent on their former husbands in spite of the discourse of independence. There is thus an underlying contradiction between the law and economic reality and within the law itself: women are expected to become self-sufficient, yet often this is not possible. The tension between engaging fathers in preserving some notion of the family as private, and coercing or shaming them into it, shows up poignantly in one telling detail. The following names have been imposed on the enforcement legislation and on the agency that executes enforcement, in this order: Originally, there was the Office of Support and Custody Enforcement, based on the Support and Custody Enforcement Act. Then the names were changed to the Family Support Plan and the Family Support Plan Act. Finally, the agency's name was changed again to the Office of Family Responsibility. Though the agency's enforcement powers have been steadily intensified, the public discourse has tried to establish a construct that is less disquieting than policing. Who can argue with 'family responsibility'? This discourse is so familiar that we tend not to question what it implies about the lack of social responsibility for the family (Pulkingham, 1994). In a similar vein, the recent shift from the term deadbeat dad to deadbeat parents in the media uses gender-neutral discourse to skirt the issue that fathers have been made into bad guys; it includes mothers in the moral identity of T^ad parent' instead of challenging the invocation of the bad guy identity in the first place. The bad guy identity for fathers has been constructed quite deliberately by the law and social policy. The term deadbeat dad justifies an aggressive enforcement policy and discourages empathy with the father, so as to minimize consideration of his personal needs or difficulties. This approach is supported by a bureaucratic discourse that precludes any consideration of individual circumstances. Most institutional informants agree that this is what the enforcement policy calls for, though it is not consistently followed through by judges. Judges, other institutional actors, and mothers are also sometimes assigned bad guy identities, by one another and by fathers. Family law as a field of practice is fraught with other contradictions besides these. Family law is recognized as an area where social and legal issues are intertwined in problematic ways. What is legally correct is often not practicable or socially sensitive. What is 'fair' according to a discourse of rights may not be congruent with a discourse of child welfare, and vice versa. 'Fair' may not take the needs of all family

Putting It All Together 213 members into account. Broad judicial discretion, which encourages judges to assess cases on a highly contextualized basis, is not a perfect solution. We have seen that judges are also faced with having to choose among opposing discourses; some approach family law through the quasi-therapeutic discourse of problem resolution, while others apply a strictly legalistic framework. This is influenced not only by social structural and circumstantial conditions but also by the social location of the particular judge. Differences in discourses also show up between mediators and enforcers, and are reflected in the solutions the fathers offer to the inappropriate use of an adversarial system for resolving interpersonal problems. When activators of the text are not well informed, the influence of their social location and subjectivity may be stronger than is intended in allowance of normal discretion. Most of the fathers in the study believe that separation issues need to be handled in a way that contextualizes the family's problems and devises customized solutions on the basis of all the relevant circumstances. For these fathers, this seems to reflect the belief that their particular needs have not been taken into account. The sources of fathers' presentation of themselves as citizens can be found in the deconstruction of the family by the law and its actualization through the system. As the analysis of the law and the informants' interviews have shown, the reconstruction of fathers as debtors tends to overwhelm the identity of father. The regulation of a father's relationship with his ex-wife with respect to money, and with his children with respect to access, makes him accountable to the state rather than to the family members. The regulation of his relationship with his employer further lifts the issue of support out of the family context. In Arendell's research on divorced fathers (1995), three-quarters of the participants believed that divorce had meant their victimization. In this vein, the identity of father as victim - in the sense of disempowered and subject to unfairness - emerges in all of the fathers' interviews in my own study. The notion of fathers as victims also emerges in several of the interviews with institutional informants. This identity is unambiguous in only one of those interviews (the one with the lawyer who 'champions' fathers' rights); in two other interviews (with the two FSP lawyers) there is no sign of fathers as victims. In the remaining instances, the Victim' construction contradicts other constructions of father as dangerous, irresponsible, controlling, selfish, or uncaring. Holding both views seems to make informants uncomfortable; seeing the father as victim does not fit with the discourse of father as bad guy.

214 'Deadbeat Dads' The institutional informants rarely draw a connection between the detachment of many fathers, or their ignorance of their children's needs, and the traditional model of detached fatherhood in which some aspects of family law are embedded. The dominance in current family law of the model of gender equality can obscure the underlying traditional patriarchal constructions. Bertoia and Drakich's analysis of fathers' rightists' rhetoric concludes that non-custodial fathers' discourse of 'personal troubles' and themes of discrimination in custody, access, and support are 'consequences of institutionalized gender arrangements that privilege men' (1995: 246). On their face, the statutes relating to custody and access do not construct fathers as victims; in fact, the gender-neutral language of the statutes, the best interests standard, and the maximum contact rule all are intended to foster the construction of fathers as valued parents on an equal footing with mothers. As Bertoia and Drakich (1995) have indicated, however, the best interests principle relies on cultural notions of the father's importance in all families, and the maximum contact principle may be understood in the same light. Even so, the laws regarding child support and spousal support can be construed as victimizing fathers in particular ways, and those laws are interpreted and operationalized through the system in such a way that fathers and most institutional informants so construe them. The construction of father by all as responsible for the support of his children keeps the issue firmly rooted within the family unit. 'Progressive' changes to the law have failed to resolve the problems created by this approach. How the Fathers Take Up Identity I have found that the various competing constructs are reflected in the multiple identities that emerge from the fathers' data. At times, these constructs emerge directly, as fathers take up particular identities (e.g., debtor, provider). Other times, they emerge indirectly as fathers attempt to counter a particular construct by establishing an opposing identity (e.g., good father or good citizen, as opposed to non-parent/bad father or deadbeat). The pattern of the fathers' responses to the identities produced by the law's implementation is this: They do not recognize themselves in the constructs of bad father, bad citizen, or criminal, and they resist being so characterized or engaged. Yet they do seem to recognize themselves in the construct of disempowered male, since this one tends to fit with their subjective experience in dealing with the sys-

Putting It All Together 215 tern. The perception of disempowerment, coupled with perceptions of bias, injustice, and incompetence in the justice system, leads them to identify themselves as victims. More specifically, the fathers' presentation of themselves as good fathers, victims, good citizens, and egalitarian husbands mirrors the legal and systemic construction of fathers and the construction of modern marriage. In the interviews, the fathers variously take up some of these identities and resist others. They do so in a variety of ways, depending on their respective personal histories, social locations, values, and expectations. Their responses are also influenced by the specific nature of their encounters with the system. The following identities produced by the law and by the system are consistently rejected: bad father, bad citizen (or deadbeat/criminal), and provider/funder; nevertheless, the public discourses associated with good versus bad fathering, good citizenship versus criminality or bad guy, and debtor versus breadwinner are very much in evidence. The identity most consistently taken up is that of deprivileged (or disempowered) male. The identity of debtor is taken up by some fathers and rejected by others. On the whole, fathers seem unable to recognize themselves in the system's designation of them (due to their non-compliance) as bad fathers and irresponsible citizens. They seem to focus on resisting the unacceptable designation; at the same time, they avoid examining the discrepancies between their declared values and their actual behaviour. Establishing themselves as good fathers and as good citizens seems to be part of their strategy for resisting unwanted identities and justifying non-compliant behaviour in the face of the system's framing of it as irresponsible. Each father ultimately arrives at the identity of victimized male. The sole exception to this is Morris, the one father who has custody; but his primary motivation had been precisely to avoid disempowerment. Bad Fathers, Good Fathers None of the fathers denies there is such a thing as a bad father; what each denies is that he belongs in that category. Each declares himself a good father whether he fits the system's definition or not. Unanimously, they construct a bad father as one who is irresponsible and who neglects his children. (Randy and Donald, however, offer an alternative construction of withdrawal from one's children; for them it is a requirement for emotional survival rather than neglect.) Each father seems to construct the attributes of a good father in his own image,

216 'Deadbeat Dads' selecting from among available discourses about what makes a good father. Thus, Donald is a T^est friend' and entertainer; Art and Randy provide stability; Gary broadens his children's horizons; Keith is emotionally attached to his child and gives the child's needs priority over his own. Neil defines a good father as a committed individual who follows through on his obligations; Morris's idea of a good father is one who is 'front row and centre' in the lives of his children (it is Morris who obtained custody of both children). Whether the personal construct has given rise to the behaviour, or vice versa, this self-identification as a good father based on legitimate discourses is one of the important ways each father resists being designated by the system as a bad father. Self-identification as a good guy, in the sense of one who is responsible, also emerges consistently in each of the fathers' interviews. Where a father acknowledges that he is not as involved with his child as he would like to be (or had expected to be), the tendency is to hold the former wife responsible (Rick, Neil, Art, Keith, Gary). Only Donald does not blame his wife; he blames work. All but two fathers account for their inadequacies as parents prior to separation by blaming the wife or the unhappy marriage. The exceptions are Gary, who blames work alone for keeping him from his children during the marriage, and Keith, who has no regrets about the level of parental involvement he had while married. The blaming of work and wife draws on the traditional model of family: mother is in charge of the children, while father works to provide for the family. The wife is always positioned as a significant contributor to any behaviour that could be construed as being a bad father. Thus, if a father cannot quite exonerate himself, he can at least even the scales somewhat by implicating his wife as a bad parent. This is consistent with Arendell's finding (1995) that former wives were devalued by their husbands - a phenomenon that Arendell sees as supporting a discourse of male superiority. Alternatively, it is possible that identifying the other parent as the 'bad' one is part of the strategy to resist being labelled the bad parent. In either case, the positioning of the wife as a bad parent indirectly supports the fathers' claims of a femalebiased, unjust system. Father as Provider The legal construction of financial support as both an individualized and a depersonalized arrangement is reflected in the way the fathers present themselves as providers. Each father accepts a moral obliga-

Putting It All Together 217 tion as a parent to contribute to his child's financial support, and each constructs himself as a father who cares about his child and is paying as much as he can. When the payments are not as much as the judge ordered, fathers shift the focus away from themselves and onto the system, and deem the judge to be unfair, biased, or incompetent. Several fathers complain that their own needs, or the needs of fathers in general, are not adequately considered by the courts (Gary, Art, Donald, Morris). It is tempting to offer individual psychological explanations for such behaviour; recall, however, that the institutional informants' data indicate that they, too, find the system flawed by inconsistency, bias, incompetence, and ignorance. They, too, tend to conclude though cautiously - that the state gives the impression of favouring women's needs over men's. We have seen that in the body of the law, the needs of parents are indeed weighed against the needs of children. The relative weights given may vary considerably, even though the law puts the needs of the children first. Each father's own personality and circumstances determine how he develops his defences around his role as father. As this research has demonstrated, the discourse and practices of the separation/divorce-related institutions offer a number of powerful (and often contradictory) constructs with which they can build those defences. Where payments are less than the amount ordered but meet or exceed the legal limit for seizure or garnishment (i.e., 50 per cent of net wages), the father takes up the identity of debtor (e.g., Donald, Art) and justifies his behaviour by adopting a legal discourse focused on debtor obligations, rather than on his position as father. Keith identifies spending money on a child for necessities as a caretaking function, and experiences the system's attempts to regulate his spending as a father as interference in his caretaking. In his mind, the system's emphasis on monetary support and apparent neglect of other aspects of the fatherchild relationship devalues him as a man and as a parent. This offers some insight into one possible paternal perspective on the issue of control. Keith's desire for control is focused neither on his ex-wife nor on the money per se; rather, it is focused on his right to choose how he expresses himself as a nurturing father. In Keith's mind, regulated support deprives the father of the opportunity to experience and show himself as caring and generous, insofar as it artificially separates payment from the father's functioning as a caretaking parent. For him, support is embedded in a discourse of relationship and nurture, but the law has removed it from that context. Admittedly, Keith may not be representative of non-custodial fathers

218 'Deadbeat Dads' in this regard. Bertoia and Drakich (1995) claim that fathers' emotional response to support payments is 'charged by [their] conviction that discrimination occurs in awarding custody and child support' (246) and that '40 percent want to maintain control of the support money' (247). Given what has been said to this point about fathers' resistance to the negative feelings divorce entails - including loss of power and control, but also of support, identity, and belonging - one needs to ask: Is talk about money always really about money per se, or is it a way of talking about what is valued without having to touch on painful emotions? Such emotions are not normally part of 'masculinist discourse' and have no acceptable means of expression for many fathers. Arendell interprets noncustodial fathers' 'rights talk' as their way of managing the emotions that arise from divorce. She found that by focusing on rights, the fathers she interviewed could 'blunt the power of their feelings and assert that they 'remained in control' or could 'regain control' (1995:134). A focus on controlling the money may be one aspect of this strategy. Neil's resentment over being reduced to a 'wallet,' and Gary's struggle to 'have a personality' under enforcement conditions suggest some of the other effects on fathers of having the support role isolated from other aspects of parenting. Each father was surprised to find that he had lost the power to control any aspect of his relationship with his child. It is not clear whether loss of control over money is especially threatening to fathers (as suggested by some institutional informants), or whether their reaction to support enforcement constitutes resistance to the perception that monetary provider is the only identity that makes them valued (as the fathers themselves suggest). Fathers who remember their marriage and family as traditional (Randy, Art, Gary, Donald), and who remember themselves as having been the providers, now describe themselves as having been generous providers immediately after separation. Each characterizes himself as a responsible member of society. Now each perceives himself to be identified by the system as an irresponsible deadbeat, and rejects that label in spite of his own non-compliance with the court order. (Since Randy is only contemplating default, the issue for him, as for Neil, is the threat of being labelled as such.) There are a number of changes in each case that could help us understand this shift from generosity to withholding, such as the feelings of guilt that Gary talks about or the expectation each father had early on that all would go smoothly. These psychological explanations doubtless have some validity. At another

Putting It All Together 219 level, however, we see that fathers who accepted the provider or breadwinner role - and the traditional role of marginalized parent - did so in the context of patriarchal family relations. Once the privileges of the patriarchal role were severely constrained, their willingness to act as family provider changed. The transformation of patriarch into provider without privilege was unacceptable to them. The state tries to keep the question of support confined to the family unit, and uses the discourse of gender equality to limit the demands on separated fathers. The fathers, in turn, are able to appropriate the discourse of gender equality in the law to justify limiting the support they give. Neil's behaviour challenges this way of conceptualizing the fathers' behaviour. He is the only father who has lost all contact with his children, all influence, and all emotional returns of the paternal role. Yet he is the only one who has been fully compliant, who intends to continue complying, and who scrupulously avoids any designation of noncompliant. Note well here that Neil is also the only father in the group (except for Keith, who is currently compliant with his order) who was not ordered to pay any spousal support. He is also the one who most passionately discusses his desire to be a father, and the only one who has no other opportunity for this role except as a provider. Though others in his position might reject his approach as the only option for exercising fatherhood, Neil's own stringent moral creed about individual responsibility and the legacy of his own substitute father seem to have predisposed him, even in isolation, to adopt the provider role as an identity for a committed father. Neil has been able to avoid conflict with the state because his traditional view of himself as a father, and the behaviour that flows from that view, is consistent with the state's. He does not question a father's overriding private responsibility for the welfare of his children. In every other case, what a father feels unable/unwilling to pay, he seems unable to worry about. Gary, Art, Donald, and Randy express abstract concern for their children's material well-being and abstract acceptance of responsibility for it, yet each avoids recognizing the discrepancy between responsibility on the one hand and non-compliance on the other. Bertoia and Drakich (1995) concluded that fathers' concerns about their own needs took precedence over their concerns for their children's well-being: The conceptualization of equality for fathers with support payment personal troubles privileges their money over their children's care' (249). This explanation of how fathers use the discourse of equality to justify non-compliant behaviour does

220 'Deadbeat Dads' explain how fathers manage to reconcile non-payment with the continued insistence that they are good and responsible parents. My own understanding of this is that fathers who can avoid acknowledging that non-compliance is a negation of either caring or responsibility are able to maintain the identity of good father. As they resist supporting the ex-spouse, they lose their focus on the children. This seems to confirm the observation by a judge in the institutional informants' chapter that children's issues have tended to be refrained by the judiciary as women's issues. The enforcement procedures certainly support this view. In other words, fathers are not the only ones who shift their attention away from the children and onto financial details, legalities, and the needs of women, who are constructed as both dependent and self-sufficient. In the process, talk of the children appears and disappears accordingly. Perhaps in a sense this is an example of one way that a government administration can cling to an identity of good government while denying that certain of its policies or practices signify negations of caring and responsibility toward its citizens. Fathering and Providing Outside Marriage

It seems that the fathers I studied have difficulty constructing a fathering role that is independent of a traditional marriage. A man's notions of good fathering are circumscribed, of course, by his construction of the family and of men's and women's roles within families. The fathers' descriptions of their family life before separation, and their disappointed expectations of what postseparation life would be like, offer clues about how they construct the family and fatherhood. There is interplay, however, between the fathers' individual constructions and the constructions institutionalized in the law. The case law examined and the judges interviewed collectively demonstrate confusion about what an ideal family should look like, what a real family experiences in the socioeconomic context of our society, and who is obligated to whom in what ways. Their confusion is not unlike that which the fathers express. At one end of the spectrum, Donald is a good example of a stereotypical 'macho' man. He was raised in a patriarchal family and was socialized to expect to head his household and function as the sole provider, in exchange for sexual attention and domestic services from his wife. Fatherhood was a secondary outcome, and emotional relationships with wife and children were not priorities on Donald's personal

Putting It All Together 221 agenda. When the marital exchange broke down from his perspective, and he left his wife for a new sexual partner, he expected his family to morph into a 'modern' one, much as the Divorce Act does. His wife would now be primary caretaker of the children and work full-time to share equally in the financial support of herself and them. He expected her to become self-sufficient while continuing to care for the children; he would retain his marginal role in their lives. Consistent with the sociolegal construction of separate and unequal but 'friendly' parents, he further anticipated that she would continue as an enabler and mediator between him and his children. Perhaps because he anticipated a modern separation as envisioned in the legislation, in which an independent wife self-sufficiently goes her separate way, he did not anticipate that the disintegration of the marriage would cost him his wife's good will or that she would lay continuing claim to his income and assets. He was aware of the law's intent regarding financial independence, but he seems to have been unprepared for the allowance the law leaves, through the exercise of judicial discretion, for a 'traditional' wife who is not able to become self-supporting. Randy, Gary, and Art also describe very traditional family relationships, with which they were content as long as their expectations were met. Each talks about his child(ren) in a way that conveys emotional attachment and some awareness of their needs and feelings. Yet since the separation, wife and child(ren) have been relegated to the financial discourse of claimants. Without the reciprocity of marriage or a meaningful role as parent, the identity of provider becomes less compelling. For them, a good father is a provider who has a relationship with his children, but the relationship depends on some sort of continuing cooperative relationship with the custodial mother. These men want traditional marriages but modern divorces, and they are able to draw on the system's contradictions to support this paradoxical position. The law and the enforcement system transform the father as provider into a debtor. Even so, the progressive judges and the mediators in the sample talk about trying to engage debtors as caring providers and egalitarian, involved dads. Among the institutional informants, there is a certain amount of cynicism about fathers who seem to want things both ways, yet the system as a whole seems to want the same. In the legal chapter and the institutional chapter, I showed instances where the courts used a strategy similar to that of some of the fathers - that is, they withheld support as a way of regaining some control over an uncooperative custodial mother. The fathers I have studied, like the

222 'Deadbeat Dads' fathers in Arendell's study, frame withholding of support as a means of self-empowerment, a way to regain the control they perceive they have lost. A father's motivation may be carefully deliberated, or it may be reserved for cases of genuine interference with access. The point is that the strategy is part of legal debate and legal practice. Father as Bad Guy/'Criminal' Discourses of morality and citizenship are found to an unexpected extent in the fathers' data. It was unclear to me at first why all the fathers talked about themselves as law-abiding citizens (i.e., they recognized their moral and social obligations and intended to meet them). Their talk about their rights was less unanticipated, but the rights discourse gained significance in the context of the citizen construct. The analysis of how the system constructs support payors reveals that these discourses are present both in the law and in the support enforcement system. They also emerge in the institutional informants' data. Enforcement agency personnel use these terms in their talk about fathers obliged to pay support. Judges, lawyers, and mediators use a mix of family, legal, and moral discourse, as the fathers themselves do. The law enforcement system that developed in Ontario in the late 1980s and 1990s constructs non-custodial parents under support orders as non-parents, as debtors, and also as potential lawbreakers. The monitoring procedures used to track their behaviour categorize them as lawbreakers when they commit any infraction. This happens for reasons that are more bureaucratic than substantive. The system is unable to distinguish degree or intent of non-compliance, and as a result, it labels all non-compliant behaviour as negligent; the debtor in default is not simply a bad father; he is also a person who does not fulfil his moral obligations as a member of society. He is a bad citizen who creates problems for society as a whole, that is, for 'taxpayers/ When fathers attempt repeatedly to establish themselves as lawabiding citizens and good guys, they seem to be resisting being designated bad citizens or just plain bad guys. Randy's personal construct of non-custodial fathers reflects his assimilation of the deadbeat image (i.e., a person who not only neglects his children but is generally marginalized - the kind of person capable of all kinds of unacceptable behaviour). Gary talks about how affronted he feels that the system is pursuing him because he has been paying less than full support, and that he has been branded a 'deadbeat' and a 'terrible person.' The one

Putting It All Together 223 father who is a support recipient and is immune from such designations, Morris, declares that any parent who does not support his children is not fit to live in civilized society. All seem to be picking up on the discourse of the enforcement system and the state's efforts to make non-payment socially unacceptable. The 'deadbeat' construct is invoked by most of the interviewees, who simultaneously believe it and deny it. This reflects the degree to which the 'deadbeat' has become part of the common available discourse about fathers. Fathers as Victims

Although neither the law per se nor the enforcement system constructs fathers as victims, the construct of father as victim emerges in all the fathers' interviews, custodial and non-custodial, paying and nonpaying alike. This suggests that something beyond the subjective experience of those who see themselves as persecuted must account for fathers' perceptions. Neil's and Randy's references to the women's movement suggest that at times they perceive they are being victimized by a feminist-influenced society. Even Morris suspects that enforcement agency personnel are hired by feminists, because he finds them unresponsive to him as a male support recipient. Besides seeing 'the system' and 'women' in general as responsible for the 'unfair' treatment of fathers, every father in the sample sees his own former wife as a participant in his victimization. Some fathers recite a litany of vengeful and destructive behaviour (Neil, Art, Randy, Keith); others cite behaviour that could be construed as reasonably self-interested (Donald, Gary, Morris). Either way, each and every father portrays his ex-wife as a contributor to his disempowerment and unfair treatment. What is crucial is that each also perceives that the system actively supports the wife's interests over his. Sometimes they perceive that the lawyer, the judge or the enforcement agency has actually taken on the wife's personal anger and vindictiveness and is supporting her in victimizing him. Gary talks about being a 'target' of the enforcement agency and being punished by a judge and opposing lawyer, who have colluded against him for being a selfish 'homewrecker' (which is, of course, how his wife sees him). He, along with Donald and Art, talk about opposing lawyers who encourage the wife to 'get him' and to 'get more.' This finding is consistent with the finding of an earlier study of fathers' decision making around non-payment of support - that the wife and the system are conflated by fathers (Mandell,

224 'Deadbeat Dads' 1995). This theme of victimization is consistent with others' findings regarding perceptions of being abused and discriminated against by the courts (Bertoia and Drakich, 1995) and of various forms of victimization as a result of the divorce experience (Arendell, 1995). The analysis of the case law, enforcement procedures, and the institutional informants' data provides evidence to support the fathers' claims that the system is biased against them as well as inconsistent. An adversarial justice system means there must be a 'winner' and a 'loser,' and overwhelmingly, fathers tend to be the losers when it comes to assigning custody. This fuels the perception of bias in the mother's favour. Judicial discourse on the needs and rights of separated women, which the gender-neutral approach in the legislation does little to dampen, reinforces this perception. The enforcement agency informants discuss their fairly rigid and undiscriminating approach to pursuing support-owing parents. The fathers' rights activist lawyer cites judicial bias and lack of principle to rationalize his stance. All of the other informants acknowledge there are contradictions and gaps in the system that contribute to the perception that the system is unfair. This unfairness may be based on gender (as six of the seven fathers understand it) or on class (as Keith views it). Keith talks of 'hallway justice'; two institutional informants acknowledge that 'market justice' or 'McDonald's justice' is regularly meted out to those who appear before the Provincial Family Court. When issues of race and ethnicity are involved, perceptions of inequity in the justice system are presumably amplified. The Fathers as Research Participants It is difficult to know whether a sample of fathers of other ethnic, racial, or class origins would have yielded a significantly different picture. The White, mainly middle-class men in the present sample consistently present themselves and other men as victims of the system; from this, it may be reasonable to hypothesize that working-class and immigrant fathers, or those of colour, may perceive even more intensely that they are being victimized. In my earlier study of separated fathers, the five fathers I interviewed were working-class and without university education; two were immigrants, and one of the immigrants was non-White. The findings of that study with respect to disempowerment and victimization were very clear. I speculated at the time that this finding was related to the sample's composition. Yet I

Putting It All Together 225 have made similar findings in the present sample, and this supports the likelihood that the disempowerment fathers experience reflects a loss of male privilege in the separation and divorce process. This experience may come as more of a shock to educated, White, middle-class fathers. On the other hand, this is the group considered likeliest to accept the discourse of egalitarian parenting (LaRossa, 1988; Jackson, 1991). Moreover, the identity of a marginalized person unsupported by the institutional system may also be more foreign to them than to those who are likely to have experienced systemic marginalization in the past. This may account for the mix of discourses they use and for the resulting confusion about what is acceptable to them and what the system should be doing, and about who they are as separated men. The other important consideration about the father participants is that no fathers are included who have never paid child support. The sole exception is Morris, who is not obliged to pay because he is now a custodial parent. According to Chambers (1983), payment for a short period of time, with gradual tapering off, is the typical pattern for divorced fathers who at some time lived with their children (287). This suggests that it may be useful to think of payment behaviour as being somewhere on a continuum, and that the fathers interviewed for this shady who have cut back or interrupted payments, or are considering doing so, may somewhere not too far down the road become nonpayors. If so, we could consider this research a peek into the early stages of the development of non-compliance. Although it may be tempting to dismiss fathers' complaints as mere 'sour grapes' or defensive tactics, the striking similarity between some of their observations and those of the institutional informants and the Ontario Civil Justice Review in its First Report (1995) should give pause: Citizens are less willing today to place blind faith and trust in institutions, in professionals and in elected officials. They are more demanding of accountability, more insistent on openness ... There is criticism about a perceived callousness on the part of the courts and on the part of those who work within the system, and also a perceived insensitivity to the needs of the very public whom the courts are there to serve. Although people recognize the volume and complexity of the issues before the courts, there is a pervasive belief that the system plays havoc with people's lives and financial resources, often putting the needs of the system and the professionals and staff within it before the needs of the public. There is an enormous sense of frustration and anger about this, and this

226 'Deadbeat Dads' spreading feeling of discontent was made apparent to the Review during its consultation stage. (105)

Summary The central thesis here is that non-payment of support by fathers is an expression of resistance to identities that the system imposes on them and that they do not perceive as congruent with their own identities. Fathers' actions become focused on non-payment and/or on establishing an identity as a good person instead of on constructive responses to changes in their parental status. We have identified the social identities the system constructs, how those identities are constructed, and how the resistance in fathers is produced in the interface between themselves and various institutions. The intensification of these identities through the discourses identified in this book is likely, in turn, to intensify fathers' resistance to them in various forms. Meanwhile, the problem of non-support is not addressed in a satisfactory way by either fathers or the state. The central issues within this frame revolve mainly around rights, money, power and control, gender-based parenting, and different constructions of morality - all in the context of a market-based society. The fathers' experiences are viewed and interpreted against this broader social landscape. It is important to remember that fathers bring to the separation experience an already developed identity, which is then taken up by the divorce process. The system, in turn, is driven by preexisting social constructs. There are in the data multiple strands of values, attitudes, constructions, and behaviour expressed by each informant, with significant tensions arising among them. Policy Implications

The problem of child and spousal support can be understood as an illustration of Edelman's theory of how longstanding social problems are constructed by discourses reflecting different interests and ideologies. The current dominant discourse, as expressed in social policy, defines support as the private responsibility of fathers as family providers. The resulting construction of the problem (i.e., its cause, the best solution, and the appropriate 'authorities') is consequently framed by that discourse. The discourse depicts fathers as bad guys, as irresponsible people who don't pay unless forced to. The solution is to force

Putting It All Together 227 them; the authority is the enforcement agency. Competing discourses are suppressed, the subjective positions of non-parent and deadbeat are produced for fathers to take up, and other possible solutions are ignored. In the past, constructions of fathers' neglect focused on individual moral or developmental failure. This construction was based on the prevailing ideology of men as breadwinners. There has also been a psychological approach that identifies depression as the specific psychological issue, either because of the difficulty meeting the financial demands of support (Baldwin, 1972) or because of the effects of the loss of relationship with the child (Kruk, 1993). The discourse of gender neutrality applied to parenting and the best interests test are intended in part to counteract the latter phenomenon and variations of it (e.g., Fox, 1986; Jacobs, 1986). With the decline of the ideology that men are destined to be breadwinners and that failure to be one is a sign of individual deficit/moral weakness, a competing discourse focusing on structural dimensions has come to the foreground. Although the problem is still seen as irresponsibility in the fathers, the solution framed by this discourse is the societal management of irresponsibility. The decision to deal with the support relationship according to the rules governing the debtorcreditor relationship frames the solution as a business or civil transaction, rather than as an issue of morality or psychology. At the same time, the state has kept the responsibility for children squarely within the private domain of the family and has created the appearance of sharing in that responsibility by enforcing private support. The failure of this construction of the problem and its solution to bring about the well-being of children and their custodial mothers is clear from the statistics on support payment and from the poverty of mother-led single families (see chapter 1). This study points to one important reason for this failure: fathers resist being identified as the bad guys and the source of the problem. Instead of shaming or intimidating fathers into responsible behaviour, we seem to have created a situation where salaried employees can be pursued while all others can evade the system which they continue to do in significant numbers. The question raised in the first chapter is relevant here: Why should it surprise us that many fathers are unable to remain focused on their children's needs once they stop living with them? Why are we perplexed by fathers who remarry and take on or start second families even while distancing themselves from the first? The phenomenon is entirely congruent with the discourse of patriarchal relations. So long

228 'Deadbeat Dads' as women are socialized to be primary caretakers and are economically disadvantaged by it, it is predictable that men will regard their parenting role as secondary in their own lives and in the lives of their children. This traditional model has been modified somewhat in Western culture, but the conditions that perpetuate it and result from it continue. It seems quite unreasonable to expect that separation or divorce will correct all of the power imbalances - economic and role-related that are present in marriage. Several insights emerge from this analysis of how divorce draws attention to and amplifies the ambiguities in the ways we think about the 'intact' family and its relationship to the state. When the private decision to end a marriage is institutionally processed as a public reordering of the family, the many conflicting ways in which we think about relations of gender, marriage, parents and children, individual and social responsibility, rights, and human welfare become 'live' because they require renegotiation in light of state scrutiny. The options for renegotiation are much broader now than they were in the past. Social changes that open up a multitude of possibilities (where once there was fairly rigid determinism) also open up the potential for uncertainty and conflict. In the face of this, people tend to retreat to positions that offer some certainty and predictability. The existence of a variety of positions, however, means that there are competing interests and discourses; not surprisingly, in the course of debate these have become polarized. These positions are found in the literature on divorce and child support, in various critiques of family law, and in the popular media. The two polarized positions are those of feminists (both liberal and radical) and those of 'fathers' rights' or 'men's rights' advocates. The current approach taken in the law tries to combine elements from both in ways that are often incongruous or downright contradictory. Feminist scholars and activists have taken positions that seek to protect the rights of women; meanwhile, men's rights activists are calling for the protection of fathers' rights (or men's privilege, depending on one's point of view). In this struggle, the discourse of rights on both sides has displaced the discourse of child welfare. There are certain ironies in how this polarization of the debate has evolved. Some feminists have argued against the authority of 'experts' such as social workers and mental health professionals, largely because the current trend in research concerning the welfare of children of divorce emphasizes the value of continuing access for both parents and a cooperative relation-

Putting It All Together 229 ship between the adults. As Smart (1989) points out: 'Policies affecting children do not occur outside gender politics ... The rush to meet the perceived "needs" of children and to "rectify" what has become identified as mother preference in custody cases may result in trampling the needs of those people who still carry the overwhelming responsibility for child care, namely mothers' (xvi). The result is that we now find feminist scholars and activists arguing against the best interests standard - an arguably paradoxical place for many mothers to find themselves. The standard does assume that as a rule, fathers are important in the lives of their children - an assumption that, admittedly, may reflect dominant discourses about the family more than any known reality (Bertoia and Drakich, 1995; Lupton and Barclay, 1997). Smart advocates for the deconstruction of 'notions like the "best interests of children" or the ideology of the new fatherhood' to prevent legal and social policy from relegating child care and nurturing by women 'to the lowest priority whilst redefining women's objections as individual pathologies or selfish vested interest' (1989: 25-6). In addition, 'the application of formal equality to the "private" sphere, such as family law, may be more troublesome than its application to some areas of the public sphere' (Smart, 1986, cited in Boyd, 1989: 136). The emphasis on increasing fathers' access and control through formal equality threatens to undermine the power of custodial mothers. Holtrust (1989) writes of the feminist reaction in the Netherlands to legislation introduced in 1978-9 on postdivorce access: Tn short, feminists maintained that the right to access was more a confirmation of patriarchal conceptions - in which fatherhood means surveillance, relationships are legally enforceable, and a world without fathers is unthinkable - than the voluntary continuation of the ties between father and child after divorce' (54). While no doubt many fathers construe access this way, the alternative - to enshrine patriarchal relations in arrangements perpetuating women's economic dependency and caretaking role - does not address the underlying problems with respect to women's inequality. Categorizing fathers, as a group, as irrelevant to their children's emotional or psychological well-being seems a poor alternative to categorizing them as indispensable. Pulkingham (1994) identifies the primary caretaker standard as a 'radical' feminist position, in contrast to the 'liberal' feminist position, which advocates degendering the structure of parenthood. She argues that the position feminist scholars have taken in favour of a primary

230 'Deadbeat Dads' caretaker standard1 seeks to acknowledge the value of the work women do as caretakers, but threatens to trap them - even outside of marriage - in the traditional role of dependence on a male breadwinner. The liberal position became suspect when men's rights groups took up the call for shared parenting after separation, assuming that the best interests test would protect their involvement with their children. Since the discourse of equality has been appropriated as a men's rights issue, many feminists have felt compelled to take up the discourse of rights to protect themselves from the threat of increased control (and restoration of patriarchal privilege) to fathers. This has had consequences, which Pulkingham summarizes: In focusing on rights for women as the goal, whether they be equality rights through gender neutral legislation (1970s style) or gender specific rights based on women's actual and/or 'special' role as nurturers (1980s1990s style), the implications of the interaction of feminist demands and state action in structuring women's subordination have been overlooked. Failure to carefully document and assess 'solutions' such as the primary caregiver presumption may unwittingly reinforce both the privatization of social reproduction and paternal control over children. (96)

She goes on to summarize the research in the United States demonstrating the link between support and access, and concludes: The research clearly demonstrates that the amount of support paid changes when the frequency of contact changes ... This quid pro quo approach reflects the prevalence of the male breadwinner family wage model; moreover, it flourishes in an environment primarily focused on strengthening individual rights. Consequently, as long as it is individual women's (maternal) rights that remain the object of attention for reform, rather than societal responsibility and paternal obligations and responsibilities within and beyond marriage, paternal rights will be fortified. This situation will do nothing to shift the burden of obligation and responsibility for day-to-day caring and the long-term costs from individual carers, primarily mothers, to fathers and society at large. (96-7)

The primary caretaker principle seems to paint women into the very corner they have been trying to get out of. If recognition of women's caregiving and dedication to parenthood is the goal, it is not clear why state responsibility for the welfare of mother-led families is considered

Putting It All Together 231 unacceptable. The more relevant issues are what the 'decent minimum standard of subsistence' should be, where the funding should come from, and how to have both children and the state benefit from supplementary expenditures by fathers. A similar irony applies to the issue of mediation. Initially hailed as a way to keep women out of an expensive and often oppressive adversarial environment, it quickly became identified as a process that threatens women's rights, safety, and negotiating power. Here, too, the fact that men's rights groups were beginning to advocate mediation made feminists wary. Mediation was viewed as a way for men to dominate women without accountability to the law. The benefits of a flexible, resolution-oriented process for many (though certainly not all) families seem to have been outweighed by concerns for women's ability to get a fair deal. The argument that a woman is safer around a lawyer than a mediator is ultimately about the protection of rights. Mediation is part of a trend toward resolution-oriented approaches, both inside and outside the courts. It recognizes the problems that arise from trying to regulate unique and complex interpersonal relationships through abstract legal rules and procedures. Olsen (1993) argues against this process of 'deformalization' in family law (i.e., the case-bycase approach of family courts). The danger of deformalization, according to Olsen, is that it Violates the rule of law and may result in ad hoc readjustments that are themselves oppressive. The welfare of family members may come to depend upon the uncontrolled discretion of state agencies, with the result that the state may directly dominate family life' (73). This kind of argument against mediation, and against deformalization of the courts, is made as if the formal legal system operated objectively, consistently, and fairly and offered adequate protection for women. The fathers in the shady argue that the legal system is inconsistent, unfair, and biased and offers too much protection for women. On the question of rights, radical feminists tend to agree that protecting one's parental rights should not signify that one is a selfish or a bad parent. (The difference is that feminists do not agree that the rights of fathers are threatened - only their patriarchal privilege.) However, Glendon's argument (1989) about the problems associated with deformalization is consistent with the findings in this book. Based on her study of family law in five Western countries, she concludes: 'The ideal of individualized justice (which is the main justification for a system of broad discretion) seems impossible to achieve,

232 'Deadbeat Dads' while the degree of uncertainty the system entails seems unnecessarily high'(201). Addressing the important question of why family law reform strategies have had 'ambiguous and even contradictory effects/ Olsen (1993: 65) develops a complex analysis of how historic attempts at reform in law and family relations have been constrained by the liberal ideology that frames them. Her comments on reforms relating to child support are helpful: Reforms aimed at ensuring support of the family by the husband either criminalized nonsupport or provided a procedure by which the wife could enforce the husband's support obligations. Some alimony and child support provisions similarly required men to be financially responsible for their families. Statutes were enacted that allowed a widow to take a 'forced share' of her deceased husband's estate and thus circumscribed a husband's ability to disinherit his wife. These reforms were successful insofar as they limited the husband's power to abuse the control he exercised, but they were unsatisfactory insofar as they left the husband in control ... Such a cosmetic change, however, fails to eliminate the ideology of sexual inequality, because merely formal gender neutrality does not address actual conditions of economic dependency. (72-3)

Another issue is whether it is reasonable to expect that there actually is enough money to go around in most cases, when one household splits into two. Glendon (1989) has argued that for most families in the countries she studied, there is not; several of the institutional informants in this study agree with her with respect to the families they encounter. Research does not support the contention that all nonpayment is a result of inability to pay (University of Alberta Institute of Law, 1981; Wachtel and Burtch, 1981; Weitzman, 1985, 1988), but there is certainly evidence that many separated families had little income prior to separation, and cannot manage two households on an income that was inadequate for one (Pulkingham, 1995). Nevertheless, within this difficult context, women fare worse economically than their former husbands. Post-separation / divorce poverty per se is not the problem; rather, it makes visible the general problem of women's inequality under patriarchal relations of economic distribution (Pulkingham, 1994, 1995). 'Previously held to the margins, the politics of marriage and family [are] pulled into focus by marital dissolution' (Arendell, 1995: 54).

Putting It All Together 233 Some of the fathers in this study express a willingness to support their children and even their former wives financially, but this willingness diminishes as they lose discretionary control over the money. The institutional informants tend to dismiss this as evidence of fathers' 'control thing/ yet the relationship between generosity and control has a long tradition in Western culture. It has an important place in the discourse of charity. The tradition of social welfare that we know as 'philanthropic' or 'charitable' was based on those who gave money maintaining control over who received the money and how it was spent. The tradition of the laws of charity for the poor - a tradition expressed as early as the twelfth century, by the Jewish scholar Moses ben Maimon - anticipates this tendency by specifying that the highest form of charity is for both the donor and the recipient to remain anonymous. This approach to social welfare may be admirable and progressive at the societal level; however, it is not applicable to the intimate relationships between parents and children, and to the emotionally 'loaded' relationships between ex-spouses. If we adhere to a discourse of fathers as bad guys - as irresponsible parents who must be forced to take responsibility - we are not necessarily going to solve the problem of inadequately supported motherled families. State resources are also limited, and it is questionable whether families can or should be supported at a high standard without the contribution of parents. Glendon (1989) questions whether any 'entirely satisfactory solution' can be developed in countries where most families have modest means, there is a high rate of marital breakdown, new families are formed or begun, and welfare states have limited resources. 'But some countries do more than others to ensure a decent minimum subsistence to families that are raising children' (237). Glendon's criticism falls most heavily on the model adopted in the United States, which has 'embraced free terminability of marriage and spousal self-sufficiency after divorce, while failing to assure either public or private responsibility for the casualties' (1989: 237). Canada has made considerable effort to ensure private responsibility, but it is clear that this policy has had limited effectiveness - effectiveness that is likely to diminish as funding for the resulting programs continues to shrink and (as seems likely) fathers continue to resist enforcement. Moreover, we need to consider the possibility that this policy may be exacerbating the problem rather than ameliorating it. The findings of this study suggest that policymakers, bureaucrats,

234 'Deadbeat Dads' judges, and related professionals are all contributing to the problem of non-support by focusing on turning fathers into T^ad guys' and by absolving society as a whole of responsibility for the outcomes of economic inequality. The law is steeped in the language of children's interests, yet women and children have quite literally been dropped from the debate because they are not essential to it. In reality, the debate is between fathers and the state, and focuses on where responsibility should rest for the welfare of children and mothers. It is difficult to explain the striking dissonance between the reality of impoverishment of women and children after separation or divorce and the apparently common belief that the legal system is pro-women. It strongly suggests that somewhere in the complex web of policy, law, and procedure, there is a profound disjuncture that gives rise to the contradictory experiences of bias and victimization. Is there a difference between the courts' stance toward initial awards of support and their approach to conflicts over non-payment? Is the impoverishment of women and children mainly the result of a lack of resources, or has it been in large part due to the courts' apparent reluctance to award appropriate levels of support? Perhaps further research on the effectiveness of the new Child Support Guidelines will help answer these questions. It is beyond the scope of this book to attempt an analysis of the perceptual gaps among fathers, mothers, and the feminist community generally. These gaps are problematic both for policy and for individual counselling, and they require more attention. Alternatives What are the alternatives to the current impasse? I begin with the assumption that 'support and property-division law exists in a complex relationship with [a] country's social-assistance law' (Glendon, 1989: 198). This means that any changes to the child support system must involve a review of social assistance as a whole. The conclusion I am led to is that we must step outside the patriarchal framework that points to preserving the postseparation family as a self-sufficient economic unit dependent on a father for its sustenance. This is especially true when the father is a disaffected parent. Society must assume responsibility for the fallout of terminated marriages as a primary solution, not as a last resort. The welfare of children must be conceptualized as a social responsibility, with private responsibility relied on to recoup as much of the expenditure as possible without resorting to

Putting It All Together 235 vilification or coercion. Such strategies don't work well and may in fact be counterproductive. I must admit that when I first encountered this proposal in the literature, it struck me as retrograde. It seemed unthinkable that fathers should be 'let off the hook' in this way, and that women and children should be made dependent on the state. Such a reaction, however, is grounded in the same discourse as the problem itself (i.e., within the framework of the 'private' family and personal responsibility - a fundamentally patriarchal, individualistic perspective). In my view, the contention that a workable solution is unacceptable because it lets fathers off too easily belongs to the same discourse that situates the problem in individual fathers who are not fulfilling their moral obligations. The goal of ensuring that children and mothers are taken care of gets quietly shunted to the side as the focus shifts to how we can assume social responsibility for ensuring that fathers do their duty. This approach is retrograde in its own way, as the following excerpt from a 1904 study by the Associated Charity Organizations (U.S.) of various state support laws suggests: 'It is clear ... that the cause is not, as might be supposed, discouragement over inability to fulfill a husband's part in caring for the family, but the lack of determination to do so; that the trouble is not physical but moral weakness' (Baldwin, 1972: 9). To solve the problem of postdivorce poverty, we will have to step outside the framework of liberalism and moral rectitude - outside the current relationship between the private family and the state. Enforcement policy has in an important sense been a step forward, as it places the problem of non-support in the foreground; however, it has reinforced reliance on fathers, who have never been reliable in this context - not in any culture or in any era. I agree with Pulkingham (1994,1995) that the real problem is not postseparation poverty per se but rather the overall economic inequality of women, which is rendered more visible by marital separation. Even if it worked, enforcement policy could not rectify this. As Sampson (1983) wrote in the early days of American enforcement policy reformulation: Perhaps demanding individual responsibility from parents will lead ultimately to an acceptance of societal responsibility for the well-being of our children in a natural progression. This latter will require a thoroughgoing revision of the parens patriae doctrine. To date the state has merely claimed the right to intervene in the family unit when necessary to protect chil-

236 'Deadbeat Dads' dren from harm. Future generations may rightly view this narrow commitment as barbaric. (72)

Ironically, when Sampson wrote this a great deal of research and writing was being done throughout the Western world regarding the problem of child poverty arising from lack of support. But the call for 'public responsibility' and 'family policy' did not necessarily refer to the state accepting full and ungrudging responsibility for the welfare of children and unmarried mothers. On the contrary, most authors tended to remain stuck within a residual framework where social responsibility meant 'social assistance' in the sense of minimal, inconsistent, and stigmatizing help (Kamerman and Kahn, 1983). Outrage over the state's longstanding failure to intervene in families for the benefit of women and children was directed toward the state's failure to ensure that the private system worked (Cassetty, 1983; Weitzman, 1985). There was research that exposed structural inequalities in the system of private support (Sorenson and MacDonald, 1983), as well as evidence that in countries where state support is given more generously whether or not the former husband pays, families fare better especially if mother is not penalized for working (Kamerman and Kahn, 1983). Nevertheless, the overwhelming emphasis in the child support literature of the time was on reinforcing the family's dependence on the father. The idea that the state ought to take up child support as a primary responsibility raises some thorny issues, which I am obliged to acknowledge. The most obvious objection is that the kind of welfare state approach I am suggesting runs counter to political realities in this country, and especially in present-day Ontario. To talk about expanding social expenditures of this nature at a time when such expenditures are being actively cut back is to risk being considered unrealistic, at best. Furthermore, such a program might well arouse resentment toward the recipients, and stigmatize them. It also raises questions about the repercussions of enshrining women's dependency to such a degree. I think about the possibilities of a guaranteed annual income - an idea that was popular among Canadian left wingers for a brief period in the 1970s. Governments would be reimbursed through the collection of support payments from parents who could be induced to pay. A typical retort to this is, 'Enforcement doesn't work!' My response to this is, 'If so, why do we rely on it now?' Perhaps it is easier to

Putting It All Together 237 acknowledge that enforcement is the wrong approach when the pockets that might turn up empty belong to the government rather than to mothers and children. Given the research on factors promoting fathers' willingness to pay, it does seem reasonable to raise the concern that payers would be even less motivated to pay if the recipient were the government, and if they knew their own children were being provided for. My response to this is that somehow we get most people to pay taxes. Social responsibility may be easier to enforce when personal privilege and private relationships gone awry are dropped from the equation. Implications for Practice

Until an effective structural solution is found, all those who work with separating and divorcing families need to consider changes in practice. We know that enforcement of child support has always been difficult everywhere (Glendon, 1989; Hahlo, 1983). If we adhere to the view that fathers who don't pay all or part of their support payments are bad guys, there is little reason for us not to expect further resistance and denial (Foote, 1986). On the basis of the evidence, it is realistic to assume that some fathers will never demonstrate responsibility for their children's welfare. The collective experience of the institutional informants as reported in this study, however, is that when fathers are engaged as caring, valued parents, very few fail to respond positively. Supported by other findings, this suggests that integrating a father's identity as provider with his identity of caring parent is probably more useful than keeping these two identities artificially separate. This is not to promote a quid pro quo approach toward access and support; rather, I am suggesting that a father's identity as a parent should not be isolated from his identity as breadwinner. Furthermore, the fragmentation of the process - one court for property, another for support enforcement, and so on - is more than just confusing and expensive; it does not fit with people's lived experience, and it forces a dis-integration of parental identities. As Glendon (1989) states: 'Although lawyers habitually distinguish for analytical purposes among divorce as such, spousal support, custody, child support, and property division, issues in these areas are inseparable from each other in real lawsuits' (197). This may be especially relevant for people whose cultural identification is still strongly patriarchal, as Arendell found.

238 'Deadbeat Dads' To bring about integration of paternal identities, a forum is needed where all issues can be discussed and considered holistically, and where the parties do not surrender all sense of control over the process. This likely is best accomplished by a mediating approach or - in situations where mediation is contraindicated - by an alternative to mediation such as formal arbitration. Tribunals are suggested by two of the fathers in this study and by the eminent Judge Norris Weisman (R.F.L. 36, 3d. ed.), although each of these men has a different idea about who would comprise the panel and how it would be used. One suggestion is that such tribunals be composed of appropriate people from the community, chosen with the family's input. The tribunal's decisions might be interim or long-term. At first, the idea of community-based tribunals struck me as somewhat unrealistic, yet I find in it references to some of the principles embodied in the present trend toward various forms of community and family-focused justice. Similar programs (e.g., Family Group Conferencing and Family Mediation) have been successful even for complex child welfare issues.2 In 1995 the Ontario Civil Justice Review made a series of recommendations, including these: the Unified Family Court system should be expanded, a case management system should be established, alternative dispute resolution should be encouraged, and other ways should be found to speed up court-related processes, cut down costs to individuals, and promote resolution rather than litigation. It also called for increased participation of the public in the justice system. Educational programs for parents have been helpful in supporting fathers to remain involved constructively with their children (Garon et al., 1994). When fathers are helped to relate directly to their children and to understand children's developmental needs and behaviour, this can offset their fear of losing their relationship with the children and of depending on an uncooperative ex-spouse. Mothers need support in dealing comfortably with former spouses (e.g., establishing necessary limits) and in identifying situations where the father's involvement is genuinely problematic for the children or threatening to themselves. The availability of supervision for visits in questionable situations helps mothers avoid having to choose between potentially unsafe or damaging visits and no visits at all. Fathers may need educating about child development, realistic budgeting for children, and so on. Parents could benefit from ideas on how to negotiate holiday visits or changes from the normal routine, and how to work out the

Putting It All Together 239 minutiae of dual-household logistics that so often contribute to tension and mistrust. At the level of individual family counselling and group services, it is important for professionals to feel permission to 'join' with fathers in the same way that is known to be successful - in fact, essential to the helping process - with all other clients. 'Joining' refers to the ability to empathize with the client and to demonstrate empathy in order to establish a basis for trust and openness. It is the basis for working together on developing shared meanings in a context where the purpose is precisely to help fathers develop constructive meanings with respect to fathering. Our goal should be to help shift the perspective of a father who is shack in a discourse of rights and power and is fighting an identity of bad guy or non-parent. To accomplish this, we need to begin by empathizing with - though not necessarily accepting - the father's 'lived experience.' Another shift in perspective is implied in Ahrons and Miller's recommendation (1993) that all members of the family be included in intervention strategies. This is because of gender differences in parents' perceptions of how involved the father actually is with his children. The victim stance of fathers does not sit well with most of the institutional informants interviewed, even those who suggest that there may be some validity to it. It also understandably infuriates feminists - and many non-feminists. Women in general scoff at the construction of men as 'losers' and women as 'winners' in the context of separation. The reality is that in most situations, mothers and children clearly suffer financially as well as emotionally and socially. The way the problem is constructed by the system, this is clearly the father's fault; thus, a helping professional who empathizes with fathers is at risk of feeling like or being perceived as an enabler for the bad guy. At the level of individual family relationships - including financial support and paternal involvement - it is clear that fathers need to find ways to empower themselves that will benefit their children but are not at the expense of the mother. We have to help fathers move from a discourse of rights to one of responsibility and caring. However, to focus on this as the ultimate source of economic well-being for mothers and children is to perpetuate the problem of keeping the responsibility within the family. So long as energy is focused on how to get fathers to take responsibility, society as a whole will continue to see child and spousal support as private problems rather than social problems for which the state must assume responsibility.

240 'Deadbeat Dads' It may be possible to generate innovative alternatives if we are willing to think in terms of both policy and practice, and to challenge the limitations imposed on us by particular ideological positions. We must consider, too, the complexities inherent in applying policies and practices framed within the dominant culture to the many different cultural groups who are served by the system in Canada. The more flexible the approach, the greater should be the likelihood of constructing solutions that people can respect and accommodate. This is possibly another argument for community-based approaches to dealing with the issues surrounding divorce. Implications for Research The findings of this research are based on analysis of a non-representative sample, in keeping with the goals of the study and the qualitative methodology that was utilized. Although in many ways the findings are consistent with past research, it may be helpful to test their generalizability, and also their applicability to specific ethnic or socioeconomic groups. The multicultural composition of Canadian society - and of Ontario in particular - requires sensitivity to differences in how fathering, family, and relationships between family and state are constructed. We may be able to learn much from fathers who do pay support; at this point, studying these fathers may tell us more than further study of nonpaying fathers. Discovering how paying fathers represent their identities and how they construct economic support may provide us with insight into how fathers can be positively engaged in meaningful parenting roles that benefit all family members. We need to carefully evaluate innovations in policy or practice so that we can stop doing what doesn't work and direct energy and funds into productive endeavours. Also, programs whose main focus is to minimize conflict between parents for the sake of the children should be evaluated for their impact on financial support. Whether or not there is state support for all children and mothers, the greater the financial contribution that can be drawn from income-earning parents, the better it will be for everyone. The national study on compliance patterns currently being done by the Department of Justice may shed some light on 'willingness to pay' factors. Critical Reflections When I first began studying divorced fathers and their thinking about child support, I did so as a clinician trying to understand the men I saw

Putting It All Together 241 in my practice as a family counsellor and mediator. I had by then some awareness that divorced people's lives were shaped as much by the law as by their own particular circumstances, personalities, and interactions with former partners, but I had no inkling how broad the implications of this field were. I can look back on this now as the nearsightedness produced by my years of clinical practice or as my own particular blind spot. Perhaps it was a combination of the two. I recall clearly that when I first presented the findings of my initial research project on how fathers process the decision not to pay child support (Mandell, 1995) at a conference on mediation, I was taken aback by a question from the audience. It came from a woman who worked for the Alberta government, and it was, simply: 'What do you think the implications of this are for policy?' I had no idea. Until that moment, I had considered only the implications for working individually or in groups with fathers. That question opened up a world of inquiry for me. I know from teaching social work students at various levels that many of them - like many people in many other walks of life - have never given much thought to the interface between the individual and societal, the personal and the political. As a social worker and social work educator, I have a particular interest in how all of this relates to my chosen profession; yet I believe that much of what I say next is applicable to others who work with families of separation and divorce. Lawyers, judges, mediators, and family counsellors of every stripe can surely relate to some degree to the issues raised here. Social workers deal every day with the fallout of social problems at the individual level. As a profession, we have always struggled with the question of whether to work at ameliorating individual suffering or to direct ourselves to social change. As a profession, we seem to have accepted the construction of support as an individual, private issue and to have directed our frustration and anger at fathers, who are constructed as the villains in this scenario. In so doing, we reinforce the construction of responsibility for children as a private parenting matter. The emerging literature on social work and postmodernism/ poststructuralism suggests that as a profession and as a field of inquiry, social work is well suited to address problems that arise out of the interrelationship between micro and macro, the state and the family. According to Parton (1994), modern social work emerged in association with the changes beginning in the mid-nineteenth century 'around a grid of increasing and inter-related anxieties about the family and the community more generally.' (94). Social workers became the 'primary technologists' of the 'hybrid space' that Donzelot has

242 'Deadbeat Dads' termed 'the social' (1994: 94). 'Social work is sited at the intersection between various institutions, the community and private families/ rendering it an 'essentially ambiguous activity' that mediates among 'diverse overlapping discourses' (Parton, 1994: 95). These ambiguities at the heart of social work, and the emergence of the profession itself, 'were inter-related with and dependent upon the development of new forms of social regulation associated with the increased sophistication and establishment of modern society' (96). Postmodernism and its operating principle of deconstruction pursues the continual interrogation, evaluation, overturning and disruption of social phenomena (104). A postmodern critique presents considerable challenges to the field of social work - along with most other disciplines - insofar as it 'advocates pluralism in morals, politics and epistemology' (104) where theoretical certainties once held sway. Social work practitioners and scholars who are influenced by postmodernity may find themselves caught between the 'potentially liberating' effects of postmodernism and the inherent threat of 'potentially disabling and nihilistic' uncertainty (104). Deconstruction of hitherto taken-for-granted systems of thought and social regulation can create an uncomfortable zone for those who rely on neat models; but in theory, it can also 'open up possibilities' for change that were once invisible. The profession's goal of enhancing 'intelligibility between different cultures' necessitates the 'willingness to tolerate contingency and uncertainty' (105). The guiding principle behind this book is that, if what we are doing to bring about social change is not working, then to continue doing more of the same makes little sense. Many of us cheered when governments created policy that actually holds separated fathers accountable for supporting their children and former wives. In so doing, we failed to recognize that the state was continuing to keep itself 'off the hook.' As long as the solution to support is sought within the private domain, strategies that at first seem progressive and show promise must inevitably fail or create other problems. If we are to consider radical change, however, we need to unpack the current structures and look at all the pieces before we move forward in a new direction. If some of the elements are kept off limits because they do not fit ideologically with a favoured discourse, or do not meet the interests of a particular group, we will be hampered in our efforts to bring about meaningful change. If we think of the discourses of rights, fairness, individualism, child welfare, private/public, and fathers' rights as 'different cultures/ then we are faced with the task of 'enhancing intelligibility' among those

Putting It All Together 243 cultures. Similarly, the polarization of micro and macro, of the individual and the social, needs to be broken down in order to generate new options for change. As Chambon (1994) writes: 'These divisions [dichotomies such as the clinical/policy arenas] no longer seem as relevant when we examine the personal/institutional meanings and practices and the internalization of discourses' (72). The social work goal of change in the direction of social justice is also well served by the orientation of feminist research toward social praxis. I hope the findings of this study will help practitioners in the field of separation and divorce, be they social workers, mediators, custody and access assessors, lawyers, or judges. Insight into the multiple perspectives and identity positions emergent from fathers' lived experience should offer an effective guide for establishing empathy and relationship in working with separated fathers. At the same time, an understanding of the context in which those perspectives and identities take shape can offer guidance for deconstructing and jointly reconstructing new identities. In line with my original goal of bridging practice and policy, I also hope this book will contribute to the opening up of the debate over issues of support and access, and to a broadening of the context in which those issues are addressed.

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Notes

1 Fathers and Divorce: Personal and Institutional Reflections 1 The problem of violence against women after separation is largely absent from the early policy literature on child support, but is currently a highprofile issue that is being addressed by women's groups and many judges, lawyers, social workers, and mediators. The potential positive influence of increased father-child contact on economic support may be outweighed by the risk of compromised safety for mothers. If a positive relationship between spouses truly is a predictor of child support compliance, increased contact between parents with a poor relationship - especially a violent one - is unlikely to have a beneficial effect on child support payment. 2 See Thoits, 1991:106; Williams, 1986; Huntington, 1986. 3 See, for example, Furstenberg and Cherlin, 1991; Huntington, 1986; Weitzman, 1988. 4 Among the fathers I studied, there was scathing derogation of judges whose decisions were disappointing. It seemed, too, that humiliating treatment by judges who were themselves contemptuous of the non-paying fathers added to the shame and rage these men expressed (Mandell, 1995). 5 A wry American Country and Western song is titled 'She Got the Goldmine, I Got the Shaft.' 6 This argument was developed in an earlier paper, 'Divorce and the Status of Women' (Mandell, unpublished manuscript, 1991), which explored the relationship between divorce law in Canada and England and the status of women. 7 Through the Divorce Act of 1985, Canadian law has restored to some extent the right of the non-custodial parent to be recognized by the child's school, medical caregivers, and social welfare/mental health personnel. This

246 Notes acknowledges that concern, rights to information, and the wish for involvement need not be terminated automatically, even when a parent ceases to be guardian and caregiver. 8 The same principle will be followed in the book with respect to the Family Support Plan/Office of Family Responsibility as the Office of the Official Guardian/Children's Lawyer. For the sake of coherence, the name used by the research participants will be retained throughout. 9 At the time of writing, this report is an internal document of the Department of Justice. 10 References to a range of literature on divorce mediation and women's issues can be found at www.peacemakers.ca/bibliography. 2 The Study 1 Feminist legal theory supports a discursive approach to issues governed by law. 'Law represents both a discourse and a process of power' (Fineman and Thomadsen, 1991: xiv). The power of family law pervades the daily lives of separating/divorced family members in both direct and indirect ways through legislated norms and through the regulatory minutiae of procedures. Where the law is silent and has deliberately excluded areas of decision from the 'public' arena for 'private' negotiation, it also reflects a particular discourse and orientation to power (C. Rogerson, personal communication, 23 June 1995; Fineman and Thomadsen, 1991). Because norms are seen to be 'created by and enshrined in law [as] manifestations of power relationships' (xiv), feminist legal theory examines 'legislative and political processes in the construction of law' and 'social and cultural perceptions and manifestations of law and legality' (xiv), rather than judicial decisions alone. This conceptualization is congruent on the one hand with Smith's theorization of the application of extra-local texts to particular local instances, and on the other hand with the ways in which case law is developed and applied. 2 NUD.IST has been characterized as especially suited to the task of creating (i.e., not only testing) theory with the aid of computer power, without losing complexity (Richards and Richards, 1991). The program was considered 'state of the art' at the time the study was conducted. 3 The Father's Perspective 1 I use the term 'themes' as it is used in the tradition of naturalistic inquiry, in the sense of 'categories of meaning' or 'conceptual categories' taken at face

Notes 247 value as they emerge from the data (Taylor and Bogdan, 1984:136-40). 'Discourses' are regulatory patterns of talk that are part of the larger contextual arenas within which the themes are constructed. 4 Looking at Legal Texts 1 These are the annotated statutes: MacDonald, ]., and A. Wilton (1992). Divorce Act 1992. Toronto: Carswell. - (1993). Ontario Family Law Act 1993. Toronto: Carswell. 2 Although the legislation speaks in gender-neutral terms of 'parents/ I will be referring to non-custodial parents and support-paying parents as 'fathers.' This designation is intended to acknowledge the reality that the vast majority of non-custodial parents are male, and that the parents obligated to pay support are overwhelmingly male. The analysis will therefore not reflect the gender-neutral stance of the statutes and will thereby hopefully not compound the problems inherent in that stance. Also, although the proportion of female non-custodial parents is relatively small, it is not insignificant. My intention is not to deny the issues faced by non-custodial mothers (or custodial fathers). Given the gendered nature of parenting, divorce issues, and non-payment, however, a focus on mothers' experience would, of necessity, constitute an entirely different study. 3 Section ll(l)(b) of the Divorce Act 1985 states: 'In a divorce proceeding, it is the duty of the court, to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made' R.S.C. 1985 (2nd Suppl.). 4 Judging from the selected case decisions in MacDonald and Wilton (1992: 251-2), this 'special category of parents' includes those 'where there is an agreement between all parties who are to share custody' (Donnelly v. Donnelly, 1976), and those 'able and willing to co-operate with respect to the child' (Baker v. Baker, 1979). Joint custody is explicitly considered to be inappropriate 'where there is hostility between the parties and a lack of communication' (Hume v. Hume, 1989) and 'where the parties held disparate views on the religion, education and recreational activities of their children' (McNeil v. McNeil, 1989). 5 Citation from the Factum of the Intervener, submitted to the court by the Children's Lawyer of Ontario (para. 9) in the case of Goertz v. Gordon (1986). 6 New Federal Child Support Guidelines came into effect 1 May 1997. Under the new guidelines, the income of the custodial parent is not taken into account in the calculation of support. The assumption is that there are built-

248 Notes in costs to having the child in one's home most of the time. However, once access reaches the 40 per cent level, these costs are assumed to apply to the non-custodial parent as well, and the amount of support is reduced. 7 Although the new Federal Child Support Guidelines eliminate, in theory, the largely discretionary approach to determining quantum of support, the allowance for 'special needs' and 'additional expenses' (which defines a very common 'extra-curricular' layer of costs in middle class families that are not covered by the table) is expected to keep alive the issues of lifestyle and respective responsibility. 8 'Economic hardship' remains in the new Federal Child Support Guidelines as a basis for requesting a variation or for deviating from the tables in making the original order (Department of Justice, Canada, 1997). 9 The Family Support Plan Act was formerly the Support and Custody Orders Enforcement Act. The enabling and complementary legislation includes the Reciprocal Enforcement of Maintenance Orders Act, the Reciprocal Enforcement of Judgements Act, the Creditors' Relief Act, R.S.O. 1990, the Personal Property Security Act, and the Freedom of Information and Protection of Privacy Act (Bennett, 1992). 10 These moral identities are picked up and amplified by legal practitioners and scholars. In a book meant to educate the public about family law, legal analyst Michael Cochrane (1993) states: 'If support enforcement is to be effective, support enforcement offices will need to be able to seize wages quickly and efficiently to impress upon a support debtor the need to pay. Only tough enforcement will form the habits necessary for ongoing compliance' (180). 5 How the Institutional Informants See It 1 These informants were consulted about how much personal identifiability was acceptable in the report. Any identifying details in the profiles were authorized by the individuals in question. Data from two sites of direct observation have also been included in this part of the analysis: a joint educational presentation by the director at the time of the Family Support Plan and a leading family law lawyer to a conference of family law lawyers; and a day spent in the family court where informant Judge Marcus presides, and where informant Plan lawyer Marie represented FSP before the court. Excerpts from two FSP publications have also been included in the data analyzed for this chapter. These brochures are Tips for Support Payers: Help Us Help You (Ministry of the Attorney Gen-

Notes 249

2

3

4 5 6

7

8 9 10

eral, 1993) and Directions for Income Sources on Making Support Payment Deductions (Ministry of the Attorney General, 1992). They are included here rather than in the chapter on texts because they are directed at the support payer and at his employer; as such, they reflect the interpretation of support law by institutional actors. Also, the brochures act as a point of interface between the law, the institution, and the fathers, and as such are distinct from the other texts examined in chapter 4. In this chapter the Enforcement Agency will be referred to by the name the institutional informants use - the Family Support Plan (FSP or 'the Plan'). The closing of these offices was announced by Ontario's Attorney General, Charles Harnick, in August 1996. The FSP has been restructured, with funds being directed to an improved telephone system that will handle client calls, mainly those of recipients. Enforcement personnel were reduced by about half. MacGyver v. Richards (1985). It is a discourse of morality based on 'fairness and justice,' rather than (perhaps) one of 'responsibility and care' (Gilligan, 1982). The excerpts from FSP publications replicate the emphasis indicated in the original texts through the use of bold print. Where I have added emphasis myself, I have used italics. There can be no question that the informants also regard mothers/creditors and children as victims of a highly flawed system. Since my focus is on fathers, I limit the analysis to the emergence of the construction of fathers as victims. Several of the conditions obviously have negative effects on recipients as well. Since the time the research was conducted, this situation has been greatly exacerbated by the closing of regional offices and by increasing centralization, with fewer staff. In a presentation on support enforcement made several months after he was interviewed for the research, Judge Howard made the point that many members of immigrant groups from vastly different cultures appear in his court, and many are ignorant of, or confused and angered by, the norms that Canadian law imposes on them. The tendency to grant custody of children to mothers rather than fathers was offered as a prime example (Justice Canada, Deputy Minister's Workshop, Ottawa, February 1996.1 was in attendance as co-presenter). See also Sealy-Burke's work on support enforcement in the Caribbean, which helps us understand the different

250 Notes expectations many immigrants bring with them regarding the role of the state in family matters such as support (Sealy-Burke, 1989). 6 Putting It All Together 1 See Smart and Sevenhuijsen (1989). 2 See, for example, A.E. Barsky (2000).

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Index

abuse, 94 access: feminist issue, 172,229; private legal matter, 184; supervised centres for, 202; undefined in Divorce Act, 134-5; unenforced, 44-5, 56,141-5. See also access/support relationship; FATHERS; institutional informants access/support relationship: children's rights, 139-40,143-5; cultural norms, 233; custody, 39, 245n.7; Family Support Plan, 174-5; father/bread winner, 230, 237; fathers' understanding, 108, 207-8; institutional agents, 171-3,177-8; in the law, 141-5 accountability, 6 adversarial system, 181-3; interpersonal problems, 213; winners/losers, 23, 224, 239 Ahrons, C, and R.B. Miller, 16, 239 Allan (community lawyer). See institutional informants alternative dispute resolution (ADR), 56 Althusser, Louis, 68

Arendell, T., 17,19, 21,24,55,213, 216, 218,222,237 Art. See FATHERS assault, 89 Associated Charity Organizations (1904), 235 Baber, K.M., and A.S. Dreyer, 25 'bad guy' father: citizen, 193; enforced support, 226-7, 233; legal construction, 212, 234; resistance to identity of, 227 bankruptcy, 51, 89, 91, 98,128 Barclay, L. See Lupton, D., and L. Barclay Barker, R.W., 25-6 beer commercials, 111 Benson, L., 31 Bernardes,}., 61-2 Bernardo, Paul, 121 Bertoia, C, and J. Drakich, 30,219 'best interests of the child/ See 'child's best interests' Bill 124 (Ontario), 56,131,144. See also Ontario Children's Law Reform Act (1980) binary oppositions, 73

266 Index biology: of breadwinner, 33; in gender roles, 28; maternal lactation, 31 breadwinner, 29,32,38; after separation, 115,219; as an ethic, 33-4; enforced support, 227,230; sole, 117; stereotype persists, 36; wife as, 117 British Columbia: private enforcement services, 46 business, 191,227 Campbell, L.E.G. See Johnston, J.R., and L.E.G. Campbell Cancian, P.M., 28,34-5 caring/uncaring, 20,72,217 Catherine (community lawyer). See institutional informants Chambers, D., 225 Cherlin, A.J. See Furstenberg, F.F., Jr, and A.J. Cherlin child custody laws, 35,37; Divorce Act, 42 child labour laws, 36 children: absent from discourse of rights, 228-9; absent from FSP discourse, 205; access/support relationship, 17,139^43; competing needs, 53,146-7; disengagement from, 3-5; in institutional agents' discourse, 206-8; loss of close relationship, 15; policies affecting, 229; as property of father, 36,135,143, 148; relationship with father, 23, 27; social change, 72; socialization of, 63; welfare of, 6,9-10,14-15, 30-1,234-5 Children's Law Reform Act. See Ontario Children's Law Reform Act (1980) Children's Lawyer (Ontario), 42,49,

246n.8,247n.5. See also Office of the Official Guardian (OG) 'child's best interests,' 37,42,53,1347,181,217; access as right of the child, 143; cultural norms, 214; definition of, 136,247n.5; feminists against, 229-30 child support: arrangements for, 132-3; business or civil transaction, 227; changes to system, 2345; competing needs, 146-7; court obligations, 132-3; history of, 70-1; levels, 54-5,146,247-8nn.6-7; literature, 236; pattern for divorced fathers, 225; principles of Divorce Act, 145-7; private responsibility of fathers, 226-7; state enforcement of, 208,247n.2. See also nonpayment of child support Chodorow, N.J., 27 citizen father: as 'bad guy/ 193,212; debtor, 155-6,161,213; law abiding, 222-3; objects of enforcement, 187; public and private, 120-5; victims of the system, 187,194,249n.7 Civil Justice Review. First Review (1995), 182, 225-6 class: victimization, 224-5 Cochrane, Michael, 39^1,43, 248n.lO common law unions, 93; private agreements, 14 community-based tribunals, 238 companionship marriage, 35 conciliation services, 49 contempt of court, 44 contradictions: in case law, 151-2; competing social constructions, 129; constructs of fathering, 210; in family law, 8; in support legisla-

Index 267 tion, 160-1; willingness to tolerate, 180 control, struggle for, 185-6 'corollary relief/ 42 court of law. See judicial system court order, 42,85 Cox, M. See Hetherington, E.M., M. Cox, and R. Cox Cox, R. See Hetherington, E.M., M. Cox, and R. Cox criminalization, 125,157,187-93,207 critical social theory, 60-3; competing discourses, 68 custodial parent: access rights, 144; control over, 222-3; mobility rights, 54,168-9. See also mothers custody: access, 39,44-5, 245n.7; assessors' authority, 57; change of status for fathers, 22; enforcement of, 44; formal evaluation, 49; gender neutrality in the law, 53; governed by Divorce Act, 42; husband's dependency on former wife, 38; joint, 7, 55,134, 247n.4; legislation, 43-4; linked to support payments, 17; loss of control, 24-5; parenting role prior to divorce, 30; primary caretaker, 54; shifts in state control, 65; statistics, 13, 37; women's rights, 34, 245n.6 Custody and Access: Discussion Paper (1993), 57 day care, 54 'deadbeat dad,' 56, 68,122; countered with victim identity, 209; 'deadbeat parents,' 70,212; identity of, 74; media construction, 178, 190,207; moral viewpoint, 176, 235; responsible, 218-19; social

construct, 9; study participants, 86; traditional discourse, 211 debtor/creditor, 151-2; citizen father, 155-6; discourse of, 8-9,161,213; enforcement of support payments, 207-8; fathers as providers/debtors, 183-4; identity, 217; language, 156-7 Demos, J., 31,34 Department of Justice, 75, 77, 79, 193; national study of compliance patterns, 5,46, 240, 246n.9; staff, 80 discourse: bureaucratic, 197,208, 212; children as property, 36,135, 143; communication mediated by documents, 78; competing, 172, 205-10,228; contradictory, 151-2, 160-1; of control, 108; debtor/ creditor, 8-9,151-2,155-6, 207, 217; dominant, 226-7; effect of, 210-11; of enforcement, 110,223; equality, 7,114-16; father as pal, 101-2,104,108; gender-neutral, 212; ideological positions, 67; legal, 172; masculinist, 218; naming of enforcement agencies, 212; of oppression, 24; quasi-therapeutic, 182, 213; in research, 76; of responsibility, 107; of rights, 230, 239; social, 21; transition expectations, 116 disempowerment, 3-4,8,23-5, 111, 215 disenfranchisement of father, 53-4 divorce: ambiguity of father's role, 38; changes in father-child relationships, 20; contested costs, 41; as correction to power imbalances, 228; division of roles, 16,21,30;

268 Index ease of, 15,34; effect on masculine identity, 26; ex-partners, 106; father's needs, 213,217; fathers' pathological response to, 15-16, 245n.l; historically, 39-40; as institutionalized process, 24; proceedings, 5,42-3,48-9; public involvement, 50; renewed relationships with children, 23; role of experts, 57,62; role of second-rate parent, 18; shifts in state control, 65; social construction of problems, 71; statistics, 40 Divorce Act (1968), 131,149-50 Divorce Act (1985), 37,40-3,131; access, 245n.7; amendment, 43; 'child's best interests,' 135-6; equalization of income, 151; joint custody, 134; modern family, 15960,221; past conduct, 137; support enforcement, 156; section 2,132; section 15(4), 151; section 15(5), 145,149; section 15(7), 149,151-2; section 15(8), 145; section 16,134; section 16(5), 132; section 16(7), 132; section 16(8), 136; section 16(10), 132,136,143; section 17, 134,147; section 15(5)(a), 149; section ll(l)(b), 132; sectionll(l)(b), 133,247n.3; section 15(5)(b), 149; section 15(8)(b), 145 divorce literature, 15-17 divorce research: critiques of, 4-5; micro/macro split, 15 divorcing fathers: court encounters, 22,245n.4 'do-it-yourself divorce,' 194 dominant discourses: oppress and liberate, 32; social problems, 69-71 Donald. See FATHERS

Donzelot, J.: The Policing of Families, 63-4 Drakich, J. See Bertoia, C, and J. Drakich Dreyer, A.S. See Baber, K.M., and A.S. Dreyer early childhood development, 35 'economic hardship,' 147,248n.8 economic issues: availability of divorce, 53; cost to state, 14,17,42; disadvantages of divorce, 4,55; inequalities in marriage, 54; personal finances of separated father, 107; position of women and children, 6; sociological research, 4. See also poverty Edelman, M., 69-71,226 education, 28,238-9 egalitarian family. See modern family Ehrenreich, B., 33^1 enforcement agency, 45-6,156. See also Family Support Plan (FSP); Office of Family Responsibility (OFR); Office of Support and Custody Orders Enforcement (SCOE) enforcement of support payments, 192-3; aggressive, 55-6,197, 212; automatic procedures, 157, 248n.lO; complex system, 194-6; considered a debt, 8-9,207-8; constructs of fathering, 209-10; cost of, 42; 'deadbeat dad,' 212; downsizing, 81; failure of, 14,242-3; financial burden on state, 14; influence of research, 14,16-17; injustices to women, 9; institutional practices, 49-50; legislation, 45-8,156-9; non-payment socially unacceptable, 222-3; patriarchal, 211-12;

Index 269 poverty, 74,235; provincial responsibility, 156; responses to, 5; statistics of, 14; underfunded, 201-2; unique powers, 157-9,188. See also voluntary agreements; wage garnishment experts, 57, 62, 71 families, 8; asymmetry in fathers' status, 26,38; children's welfare, 6, 9-10,15,30-1; competing discourses, 211-12; constructions of in the law, 149,159, 210; definitions of, 63^1; dynamics of, 57-8; economic dependence, 236-7; men's legal obligations to, 34-5; patriarchal, 27,151,159-60,185; power relations, 181; research on divorce, 4-5; roles, 21, 28, 38, 220-2; as social category, 62-3; state responsibility, 46, 235; statistics on poverty of, 13; traditional, 31, 219 Family Allowance, 94 Family Benefits. See social assistance family court, 42, 78-9,162-4,224; marginalized, 195; physical description, 79 Family Group Conferencing, 238 family law: contradictions, 212-13; expectations from reforms, 50, 53; gender equality, 137-8, 214, 22930, 232; reforms, 8, 34, 50, 245n.6; relationship of state to family, 645, 246n.l; settled at pretrial, 49 Family Responsibility and Support Arrears Enforcement Act (FRSAE), 47 Family Support Plan Act (1992), 45, 131,156, 248n.9; expanded powers, 47; failure of, 14; gender neu-

tral language, 55-6; name changes, 74-5,212; unique enforcement powers, 157-9. See also Support and Custody Orders Enforcement Act (1985) Family Support Plan Amendment Act, 156-7 Family Support Plan (FSP), 85; access/support relationship, 174-5; access to data banks, 193; arrears, 104; discourse of names, 47,212; downsizing, 249n.3, 249n.9; enforcement agency, 249n.2; errors, 96, 98; fathers as providers/debtors, 184; 'good/ bad father,' 118,122,207-8; hostile to fathers, 94,183; institutional informants, 162-3, 246n.8; mandate for aggressive enforcement, 197; moral purpose, 189; office's physical description, 79; publications, 78; telephone system, 190, 249n.3,249n.9; universal treatment of fathers, 86-8,179,186-7; volume agency, 196-7,249n.9; wage garnishment, 89, 92; Directions for Income Sources on Making Support Payment Deductions, 190-1, 248n.l; Tips for the Support Payor, 183-4, 189-90,197, 248n.l. See also Office of Family Responsibility (OFR); Office of Support and Custody Orders Enforcement (SCOE) 'family wage,' 33 father-child relationship: caretaking parent, 217-18; change with divorce, 17-18; 'child's best interests,' 108-9; custody and access laws, 133-4,245n.7; discourse of justice, 108-9,172-3; of divorced

270 Index fathers, 58,220-2; fathers' needs, 115; fathers' nurturing skills, 2931,174; link to support compliance, 17; role of husband, 149; spending money, 111; spousal relationship, 21; support obligations, 139^3; system's effect upon, 217; threat to, 16,245n.l; when violence in spousal relationship, 245n.l fatherhood: dominant discourses, 31-2; evolution of, 57; institutionalized representations, 39; meanings of, 28-9; non-custodial father, 37-8; secondary attachment, 116 fathering, 58; assistant parent, 30; competing discourses, 210-14; emergent model, 36-8,58; history of, 31; law's ambiguity, 144; multiple identities of, 72; relationship to marital role, 16; relationship to marital status, 21; responses to loss of role, 19; responsible, 108; role in masculinity, 25-7; social constructions of, 100

-

-

FATHERS

- Art: access/support relationship, 111-13; beat system, 127-8; complex system, 50,52f.l.2; 'good/bad father' constructs, 215-16; identity as citizen, 121,123; judged by legal system, 119; loss of fathering role, 110; portrait, 84f.3.1,90-1; provider/parent, 218-19; responsibility as father, 102-4; support payments, 87,116-17; traditional marriage/modern divorce, 221; victim, 223-4 - Donald: access, 100-1; beat system, 127-8; bias against men, 126; breadwinner, 116-17; father as pal,

-

-

101-2; 'good/bad father' constructs, 215-16; identity as citizen, 120-1; judged by legal system, 118-19; portrait, 84f.3.1,88-9; provider/parent, 218-19; support payments, 87,106-7,114-15; traditional roles, 111, 220-1; victim, 223-^ Gary: 'deadbeat dad,' 222-3; 'good/bad father' constructs, 21516; identity as citizen, 121-3; judged by legal system, 119; loss of fathering role, 110; portrait, 84f.3.1, 97-8; provider/parent, 218-19; support payments, 87,114,116-17; traditional marriage/modern divorce, 221; victim, 127; wife as mediator with children, 117-18 Keith: beat system, 127-8; 'good/ bad father' constructs, 215-16; judged by legal system, 118,122; loss of fathering role, 110; portrait, 84f.3.1, 95-7; right to choose, 21718; support payments, 87; victim, 125-6,223^ Morris: access/support relationship, 119-20; 'deadbeat dad,' 223; disempowerment, 110,215; 'good/ bad father' constructs, 215-16; identity as citizen, 123; portrait, 84f.3.1,94-5; support payments, 87-8; victim, 125 Neil: access, 92-3; beat system, 127-8; 'child's best interests,' 10910; competing rights, 104-5; 'good/bad father' constructs, 21516; identity as citizen, 121-3; judged by legal system, 119; loss of fathering role, 110; portrait, 84f.3.1, 91-3; provider/parent, 218-19;

Index 271 support payment, 87,115; victim, 126, 223-4; women's movement, 126 - Randy: access/support relationship, 108-9; 'deadbeat dad,' 222; 'good/bad father' constructs, 21516; identity as citizen, 120,123-4; issues of justice, 105-6; judged by legal system, 119; loss of fathering role, 110; portrait, 84f.3.1, 93^; provider/parent, 218-19; support payments, 116-17; traditional marriage/modern divorce, 221; victim, 223-4 fathers' perception of self: bad laws not own behaviour, 24 fathers' rights movement, 30,181; Bill 124,144; children's rights, 206; discourse of equality, 229-30; father as victim, 4, 213-14; judicial bias, 224; powerlessness, 19-20 Fawcett, B. See Featherstone, B., and B. Fawcett Featherstone, B. and B., Fawcett, 73 Federal Child Support Guidelines, 43, 55, 160, 200-1, 234, 247n.6, 248n.7-8 Federal Orders and Agreements Enforcement Assistance Act (1986), 46 Federal/Provincial/Territorial Family Law Committee study (1995), 55 feminist analysis, 74, 246n.l; access, 172, 229; author's bias, 82; gender neutrality in family law, 54; and men's rights movement, 72; patriarchal family, 27; patriarchal power, 73; sexual abuse of children, 73

feminist debates, 6-7,165; discourse of rights, 228-32; oppressed men, 24; state enforcement of support, 9 'finality,' 152-3 Fogel, A., G.F. Melson, and J. Mistry, 29 Foote, Catherine, 66 'forty percent rule,' 55 Foucault, Michel, 61-7, 69 Fox, G.L., 25, 36-8 'friendly parent' rule, 143 Furstenberg, F.F., Jr, and AJ. Cherlin, 16, 21, 38 Gary. See FATHERS gender: construction of parenting, 54; discourse, 21; division of labour, 16, 28, 71; economic inequalities, 36; equality, 137-8; fathers' emotional responses, 20; identities, 22-3,26-7; language, 70; law, 59; parenting, 138-9; policies affecting children, 229; values, 6 gender neutrality, 53-4, 56; applied to parenting, 227; Divorce Act language, 145-6 gender values: polarization, 6 General Division Court, 89, 97-8,128 Gergen, K.J., 75 Gilman, Charlotte Perkins, 33-4 Glendon, Mary Ann, 50, 53, 64-5, 231-3, 237 'good/bad father': constructs, 21516; FSP, 118,122, 207-8; identity, 174-80; what makes them, 207-8 guaranteed annual income, 236 Guttman, J., 21 Hagan, M.S. See Hetherington, E.M., and M.S. Hagan

272

Index

Harris, Mike, 75 Harvey, L., 61-2 Henriques, J., W. Hollway, C. Urwin, C. Venn, and V. Walkerdine, 67-8, 73 Hetherington, E.M., and M.S. Hagan, 29 Hetherington, E.M., M. Cox, and R. Cox, 18 history of fathering, 31 Hollway, W., 68, 73 Holtrust, N., 229 homosexuality, 33 Howard, Judge. See institutional informants Huntington, D.S. See Wallerstein, J.S., and D.S. Huntington identity: 1}ad father,' 106; 'bad guy/ 193,212; bankrupt, 128; caring father, 20,217; changed, 99; citizen, 120-5; as citizen, 155; competing, 129; criminalization, 157; crisis of, 25; 'deadbeat dad/ 74,209; debtor, 213, 217; effaced, 125; effect on behaviour as parent, 16; father conflicted, 67; father/provider, 910,111-16,170, 221; fathers' multiple, 72; good father, 174-80; how individuals take up, 67-8; loss of, 18-19,21; marital, 21; masculinity and fathering, 25-7, 37,57; in miners' strike, 72; moral, 119,176; paternal, 58,237-8; power, 24-5; produced by institutional agents, 206-7; produced by law, 214-15; public and social influences, 22-3; relationship to fathering, 4; resistance to, 226; role of fatherhood, 18, 25-6; social environment, 7;

socially produced, 7,67-8; social pathology, 4; study's conceptual framework, 60; victim, 8,213 identity theory: role of social interaction, 22 ideological frameworks, 61-3 ideology: competing discourses, 210-11; discourse, 67; function of, 62; social constructions, 27; social problems, 69-71; use of in research, 76 Income Tax Act, 43 individual psychological explanations, 5 industrialization, 33—4, 36 instinct for family life, 31 institutional agents, 49-50,208,210; competing discourses, 205-6 institutional informants, 78; access/ support relationship, 221-2, 237; bureaucratic discourse, 212; fathers as victims, 213-14,249n.7; profiles, 162-7,248n.l; system as flawed, 208 INDIVIDUALS

- Allan (community lawyer): access/support relationship, 1723; biased judges, 169-70; biased justice system, 180-1; bias toward women in system, 204; complexity of system, 195; fathers' rights, 189; guidelines, 200-1; identity of legal disputant, 174; law and justice discourses, 206; media, 190; profile, 165,168f.5.1; violence, 187 - Catherine (community lawyer): access/support relationship, 1702; adversarial system, 181-2,186; Black West Indian feminist lawyer, 180; control, 185-6; cultural bias,

Index 273 203-4; fathers' moral viewpoint, 175-6,249n.5; lack of consistency, 199-200; Legal Aid, 202; moral argument, 172; profile, 165-6,168; race and class discourses, 206 Howard, Judge : access/support relationship, 171,173,176-7; 'bad father/ 178-9; conflicting constructions of father, 198; control, 185; court bias toward women, 204-5; guidelines, 200-1; institutional dismissal of fathers, 190; lack of consistency, 199; language of policing, 188; Legal Aid, 202; mediatory approach, 182; mobility rights, 168-70; personal approach, 198-9; pragmatic approach, 174-5; profile, 164,168; support enforcement, 192-3,197; violence, 186-7; wage garnishment, 188 Malcolm (mediator): adversarial system, 181-2; complex system, 194; control, 185; language of policing, 188; power of custodial parent, 169-70; profile, 166-8; standard for fathers, 178 Marcus, Judge : access/support relationship, 171,173; adversarial system, 181-2; complex system, 194-5; guidelines, 200-1; illiteracy, 203; intimidating written material, 198; language of policing, 188; personal approach, 198-9; profile, 163-4,168; support enforcement, 192-3; unresponsive system, 196, 249n.9; violence, 186-7 Marie (FSP lawyer): complex system, 195; hostile to fathers, 183; lack of consistency, 199; profile, 163,16884f.3.1

- Peter (FSP lawyer): complex system, 195; father as 'bad guy,' 189; gender-neutral language, 205; lack of consistency, 199; mediation, 182-3; profile, 163,168 - Robert (FSP administrator): 'bad father,' 179; bureaucratic language, 192; enforcement measures, 188; FSP role, 170-1; intimidating written material, 198; media, 190,204; police language, 189; profile, 1623,168f.5.1; Support Deduction Order, 191; volume statistics, 196-7 - Susanna (mediator): access/support relationship, 177-8; adversarial system, 181; control, 185-6; cultural bias, 203-4; fathers as parents, 170; language of custody, 169, 173-4; profile, 166,168 institutional power, 23-5 institutional separation of support and access, 170-5 interpellation, 68 involuntary child absence syndrome, 18 Jacobs, J.S., 18, 24 Johnston, J.R., and L.E.G. Campbell, 20-2 Judaeo-Christian cultural history: love and marriage, 28 judge/mediator, 22,89, 245n.4 judges: derogation of, 245n.4; quasitherapeutic discourse, 182,213 judicial discretion, 44,55,136-7,147; competing needs, 155; opposing discourses, 213 judicial system: as aligned with women, 23, 245n.5; disempower-

274 Index ment, 3-4; pursuit of self-esteem, 22,245n.4 justice: children's well-being, 113; criminalized, 125 justice system: alternatives, 238,240; biased, 126,169-70,180-1,216; children/women's issues, 219; cultural differences, 203-4,249n.lO; as flawed, 208,217; regulate family's reorganization, 209-10; White male-dominated, 180 Keith. See FATHERS Kelly, J.B. See Wallerstein, J.S., and J.B. Kelly kidnapping, 92 Lamb, M.E., 30,38 language: of custody, 173-4; debtor/ creditor, 156-7; of enforcement bureaucracy, 192; of Family Support Plan, 191; gender neutrality, 53-4, 56,145-6,227; of labelling and disparagement, 24; law and support orders, 152; of policing, 188; of property rights, 135; role in discourses, 21,67; of separation, 44; social conflict, 69-70; of socially constructed problems, 71 law, body of: construction of marriage and family, 210; needs of parents/children, 217 law cases: Aitken v. Aitken (1984), 153; Baker v. Baker (1979), 134,247n.4; Barca v. Barca (1972), 136; Blackmore v. Blackmore (1986), 142; Caron v. Caron (1987), 152-3; Clarke v. Clarke (1986), 153-4; Currie v. Currie (1988), 145; Desilets v. Desilets (1975), 138; Donnelly v. Donnelly

(1976), 247n.4; Donnelly v. Donnelly (1988), 138; Dykes v. Dykes (1977), 136; Fanning v. Fanning (1989), 132; F.(R.D.) v. F.(S.L) (1987), 132; Friedman v. Friedman (1987), 147; Goertz v. Gordon (1986), 136-7,247n.5; Grant v. Grant (1975), 136; Gresham v. Gresham (1988), 148; Hastings v. Hastings (1986), 154; Heinemann v. Heinemann (1989), 151-2; Henderson v. Henderson (1977), 133; H.(F.V.) v. O.(D.A.) (1988), 139; Hume v. Hume (1989), 247n.4; King v. King (1990), 146; K.(MM.) v. K.(U.) (1990), 136; Lake v. Lake (1988), 147; Lee v. Lee (1990), 140-1; Lohnes v. Lohnes (1980), 150; MacGyver v. Richards (1985), 168-9,204-5,249n.4; McNeilly v. McNeilly (1987), 146; McNeil v. McNeil (1989), 247n.4; Mitchell v. Mitchell (1988), 145; Moge v. Moge (1990), 150; Pedersen v. Pedersen (1984), 146; Pelech v. Pelech (1987), 152-3; Pickard (Coffin) v. Coffin (1980), 142; Plume v. Plume (1981), 140; R. v. R. (1983), 138; Redl v. Redl (1983), 150; Re F. (1976), 145; Re(G.) (1973), 136; Remillard v. Remillard (1986), 142; R.F.L. 36 (3d.ed), 238; R.F.L. 36 (3d.ed) 35 at 41,144; 15 R.F.L. (3d) 243 at OntH.C, 137; 36 R.F.L. (3d) 35 at 66,141; 39 R.RL. (2d) 449 at B.C.C.A., 146; Richardson v. Richardson (1987), 152-3; Russo v. Russo (1988), 141; Simpson v. Simpson (1987), 133; Smith v. Smith (1990), 147-8; Sobstyl v. Sobstyl (1989), 148; Storey v. Storey (1987), 154; Strutyn-

Index 275 ski v. Strutynski, 151; Tassou v. Tassou (1976), 140; T.(K.A.) v. T.(J.) (1989), 133; Twaddle v. Twaddle (1985), 139; Welstead v. Bainbridge (1994), 140; Williams v. Williams (1989), 138; Winterle v. Winterle (1987), 151 Law Reform Commission of Canada Report (1976), 5 Legal Aid, 90-1, 96,127; race, 203-4; underfunded, 202 legal system: basic steps, 48-9; contradictions in, 234; identities produced by, 209-10 legal textbooks, 78 legislation, 41-3, 78; evolving during research, 81 Lewis, Clare, 14 love: ways of, 28 Lupton, D., and L. Barclay, 21,26, 28-32 MacDonald, ]., and A. Wilton, 131, 134,149-52, 247n.4 MacGyver v. Richards, 168-9, 204-5, 249n.4 MacKinnon, Catherine, 34 Maimonides, Moses, 233 'main relief/ 42 Maintenance Enforcement Program (British Columbia), 46 Malcolm (mediator). See institutional informants male privilege: dominant subjects as victims, 7-8; identity, 58-9; loss of, 19,24,185-7; role of fathering in masculinity, 25-7; White, middleclass fathers, 225 Mandell, D., 23-4, 62,224-5 Manitoba, 150

Marcus, Judge. See institutional informants marginalization as parent, 110 Marie (FSP lawyer). See institutional informants marital breakdown: rate of, 42 marriage: changing ideologies, 34-5; constructions of in law, 210; division of roles, 21,33; economic partnership, 8,43; love and, 28; modern, 63,159-60,215,221; nontraditional, 29; self-sufficiency after breakdown, 152-3; state restructuring of, 159-60; traditional, 115,150-2,219; voluntary child support, 14 Marxist analysis: gendered division of labour, 34; patriarchal family, 27 masculine stereotypes, 57 masculinist ideology, 7,19,218 masculinity: changes in models of, 32; divorce's effect on, 26; in fathering role, 25-7; industrialization, 33^4; loss of power, 19; and parenting, 30; stereotype, 26-7,32. See also breadwinner masculinity/femininity, 27 maternity benefits, 36 'maximum contact/ 143,214 McDonald's justice?, 224 McLeod, J., 141 media, 178; beer commercials, 111; bias against fathers, 204; 'deadbeat dads/ 178,190,207; gender roles, 28; non-payment of support, 190 mediation, 49,88-90,93^, 162, 166-7; child support, 237-8; creates problems, 182-3; family, 78, 238; fathers' preference for, 121,

276 Index 123-4; rights discourse, 231; violence, 186-7; women, 56 Melson, G.F. See Fogel, A., G.F. Melson, and J. Mistry Members of Provincial Parliament, 193,196 men's capacity to nurture, 29,174 micro/macro interface: custody issues, 22; divorce research, 15,69; research approaches, 5,62,72-3 Miller, R.B. See Ahrons, C, and R.B. Miller Ministry of Community and Social Services, 96 Mirowski, J., and C. Ross, 24 Mistry, J. See Fogel, A., G.F. Melson, and J. Mistry modern family, 63,159-60,215, 221 Morris. See FATHERS mothers: as angels, 177; caretaker, 16, 37-8; custodial, 229; identity, 25-6; needs of, 5; as non-custodial, 247n.2; power of custodial, 38; responsibility, 53; stay-at-home parent, 115; victim, 249n.7; working, 30. See also custodial parent Myers, M.F., 19 narcissistic disturbance, 22,58 NDP government (Ontario), 190 needs and means principle, 146 Neil. See FATHERS Netherlands, 229 non-custodial father, 37-9,245n.7; access, 139^43; as "bad guy/ 208; default consequences, 48; genderneutral language, 247n.2; legally narrowed, 39,245n.7; as non-parent, 135; non-parents under law,

148,160-1,208; 'rights talk/ 218; value as parent, 170 Non-numerical Unstructured Data Indexing Searching and Theorizing (NUD.IST), 79,246n.2 non-payment of child support: 'bad laws/ 24; Canadian statistics on, 13; clinical experience, 3; committed fathers, 20; congruent with patriarchy, 227-8; control, 19; custody/access relationship, 17; decision process, 3-4,219-20; depression, 227; effect on children, 107; enforced compliance, 6-7,45-8; failure of system, 227; gender, 13, 70; identities, 7; ideologies, 21; inability to pay, 232; joint custody, 55; moral viewpoint, 175-80,21617,222-3,249n.5; presentation of selves, 3; resistance strategy, 23,62, 66-7,226; subjective experience of, 3; widespread, 4-5 non-supporting fathers. See non-payment of child support normalization, 65-6; of fathers as lawbreakers, 188 nuclear family, 63 nurturance, 57-8; gendered role of, 29-31 objectivity, 81-2 Office of Family Responsibility (OFR), 45-8,74-5,246n.8; discourse of names, 47,. 212; support enforcement, 157. See also Family Support Plan (FSP); Office of Support and Custody Orders Enforcement (SCOE) Office of Support and Custody Orders Enforcement (SCOE), 45,

Index 277 74-5,85, 88; discourse of names, 47,212; downsizing, 75. See also Family Support Plan (FSP); Office of Family Responsibility (OFR) Office of the Attorney General, 78, 249n.3 Office of the Official Guardian (OG), 49,92,119,171, 246n.8. See also Children's Lawyer (Ontario) Olsen, F.E., 28, 231-2 Ontario, 236; Civil Justice Review, 182, 225-6; construction of debtors, 222; cost of divorce, 41; Court of Justice, 42; downsizing, 81; enforcement system, 86; family assets, 43; family law, 34; multicultural research, 240; privatized enforcement services, 46; statistics, 14, 55-6; wage garnishment, 45 Ontario Children's Law Reform Act (1980), 37,43, 49,131,136; section 20(5), 135; section 24(2), 136. See also Bill 124 (Ontario) Ontario Civil Justice Review (1995), 56, 238 Ontario Family Law Act (1986), 44, 131; section 30,153; support enforcement, 156 order of support: causal connection, 153; competing needs, 146-7, 154-5; contradictions in legislation, 160-1; debtor as potential defaulter, 157; standard of living, 154-5; variations, 48,147-8,150, 248n.8 parens patriae, 133,159, 235 parental leave structures, 54. See also maternity benefits

parenting: power sharing, 53; roles prior to divorce, 30 Parton, N., 65 past conduct, 137 paternal disengagement, 58; children's welfare as private, 15; rule rather than exception, 4-5; structural explanations, 16-17. See also non-payment of child support pathology: individual response to divorce, 15-16; social, 4 patriarchy: children as property, 36; decline of authority, 31; detached fatherhood, 214; enforcing support, 211; family organization, 27; fathering role secondary, 227-8; feminist dilemma, 9; gender roles, 28; language in regulatory legislation, 135; loss of privilege, 185-6, 219; masculinist ideology, 7; reform of child support system, 234-5; responsibility for children, 9-10; restructuring of family, 15960,220-2; strategies for change, 73; women's inequality, 232-3 Peter (FSP lawyer). See institutional informants Plan, the. See Family Support Plan (FSP) Pleck, J.H., 29 polarization, 7; feminist and fathers' rights, 72,228-32 policing: of families, 63-4, 211; language of, 188 policy makers: causes of non-payment, 13-14; effect of research approaches on, 5,14,241-2 political pressures, 80 political privileging, 69 'postdivorce parenting plan/ 49

278 Index poverty, 13,55,74, 227,232,235-6 power: conflicts within family, 37; of custodial mother, 38; in divorce process, 61-3; fathers' loss of, 19, 23,245n.5; fathers' within family, 27; institutional, 23-5; maternal, 169-70; poststructural theories of, 60; property owners/wage earners, 33; reversal of usual relations of, 186; sharing of, 32; shifts in families, 160-1; state administration of the family, 65-6; women's rights, 34,245n.6 powerless: fathers as wallets, 126, 218 power relations, 209-10 practitioner: effect of research approaches on, 5,242-3; understanding of non-supporting fathers, 3, 6, 238-9 presentation of self, 83. See also identity primary caretaker: custody determinant, 54; standard, 229-31 Prince Edward Island, 17 private arbitration, 49 provider/father, 16; legal constructions, 216-17; loss of control, 21819; primary, 115-16; private responsibility, 226-7 provincial jurisdiction, 43—4; enforcement of support, 156 psychoanalysis, 58; fathering role, 36 public and private, 59; children's welfare, 14-15, 235-7; child support, 208; citizen identity, 120-5; custody and identity, 22; families, 46,62,159-60,212,228; how constructed, 65, 246n.l; loss of power, 23,245n.5; parens patriae, 133; post

marital relationship, 184; responsibility for children, 9-10,227,2334; shifting boundaries, 63-4; social construction of problems, 71 Pulkingham, ]., 229-30,235 QSR NUD.IST, 79,246n.2 race, 165-6; discourse, 206; justice system, 224; Legal Aid, 203-4; victimization, 224-5 Randy. See FATHERS Reciprocal Enforcement of Maintenance Orders Act (Ontario), 156 relationships, effect on support, 5; paternal contact, 16, 245n.l religion: gender roles, 28 research approaches: collaboration, 80; criticism of, 4; design of in study, 62; integrate micro and macro, 5; leading to state enforcement, 14,16-17; paying fathers, 240; policy implications, 241; qualitative, 75-7, 79, 81-2; questions for study, 74; study's conceptual framework, 60-1 research on fathering: critiques of, 25 responsibility: 'bad father,' 106; contradictory discourses, 8; economic support, 37; effeminacy/homosexuality, 33; for the family, 212; of fathers and mothers, 53; financial, 116-17; and nurturance, 29-31; provider, 226-7; reciprocity and fairness, 112-13; social/private, 237; societal management of, 227; victim, 209; welfare of children, 219,234-7 Revenue Canada, 47,193 Riessman, C.K., 23

Index 279 right wing: writing on fatherhood as, 24 Robert (FSP administrator). See institutional informants role of fathers, 25 Roman, M., 36 Ross, C. See Mirowski, ]., and C. Ross Rossi, A.S., 29 Rules of Practice or Rules of Court, 41

Russell, G., 29 Sampson, J.J., 235-6 Satterfield, M.T. See Vayda, E.J., and M.T. Satterfield Sealy-Burke, J., 249n.lO Second World War, 35 separation process, 5,49 single fathers' group, 93 Smart, C, 229 Smith, Dorothy, 62,67, 76, 78, 86, 246n.l social assistance, 42,85, 87,96,234-7 social constructions: breadwinner, 33; father as debtor, 8-9,151-6, 161,183-4,188-93; father as provider, 207-8, 216-17; of fatherhood, 58,100; of fathering, 209-10; of father in legal system, 198; fathers as lawbreakers, 188-96; of fathers by institutional agents, 206; fathers' emotional responses, 20; husband/provider, 111-14; language of, 71; of loving, 28; of nurturance, 29-31; political element, 69; study's conceptual framework, 60-1; through law, 131 social policy: alienation of men, 36-7; effect of research, 5,14,241-2; enforcement of payment, 4; male perspective, 6

social status: loss of with divorce, 25 sociological analysis, 58,61-2; patriarchal family, 27 sociological research, 4 sociology: fathering role, 36 sole financial provider, 117 spouses: reconstructing wives and husbands, 149 standard of living, 154-5 state institutions: divorcing fathers encounters with, 22, 245n.4 state support of children, 17,133,236 status of fatherhood: reduced by women's movement, 20 Stearns, P.N., 31,35 Strauss, A.L., and J. Corbin, 75 structural conditions in custody, 54 structural explanations: critiques of, 5; division of labour, 36-7; dominant discourses, 70-1; resistance to institutional power, 23; shortcomings of, 4 study: assumptions, 62; author's bias, 82; conceptual framework, 60-1, 75; data, 75-7; fathers, 77,801, 83-8 (See also FATHERS); interviews, 79-80; location, 74-5; policy implications, 241-2; practicerooted motivation, 76; questions for study, 74,209; research design, 62; researcher's impact, 80-1; sample of texts, 78; themes, 99,2467n.l. See also institutional informants study participants. See FATHERS; institutional informants subjective positions. See identity subjectivity, 81-2 Superior Court of Justice, 42 support agreement: and access,

280 Index 139^3; meet needs of the state, 133 Support and Custody Orders Enforcement Act (1985), 45,248n.9; discourse of names, 47,212. See also Family Support Plan Act (1992) support creditor, 156-9 Support Deduction Order (SDO), 49, 157-8; employers, 190-1; payers as lawbreakers, 188 support default, 46-8; statistics, 55-6 support order. See order of support Supreme Court (Canada), 149-50, 152-3 Susanna (mediator). See institutional informants 'tender years/ 35,37,53,138 texts as constituents of social relations, 78,213 theoretical framework, 71-2, 74; strategies for change, 73 therapeutic issues: separated/ divorced fathers, 19 Tolson, A., 27 tribunals, 238 Unified Family Court, 238 United States: access/support relationship, 230; child support reforms, 55; family law, 64,233; private enforcement services, 46 University of Toronto Law School, 78 Valverde, M., 68,73 Van Manen, M., 81-2 Vayda, E.J., and M.T. Satterfield, 48 victim: father as, 20,207,223^1; of

injustice, 109; irony, 4; of legal system, 123-5; mainstream identities, 86; men as losers, 23,224,239; mothers and children, 125,249n.7; pre-empted identity of, 125; race and class, 224-5; result of divorce, 213; social injury, 4; subjective category, 8; wives responsible for divorce, 23 Victor, I., and W.A. Winkler, 19-20 Victorian marriage, 34-5 'Victorian patriarch/ 31 violence: in divorcing couples, 21, 186-7; loss of paternal role, 19, 245n.l; potential in adversarial system, 181-2 voluntary agreements, 85; statistics, 14 wage garnishment: automatic order, 47,157-8,248n.lO; before enforcement hearing, 98; identity of debtor, 217; maximums, 45,128, 157-8; self-employment, 92; support of, 188 Wages Act, 157-8 Wallerstein, J.S., and D.S. Huntington, 17,29 Wallerstein, J.S., and J.B. Kelly, 20 Warrant of Distress, 45 Weedon, C, 68, 72 Weisman, Judge Norris, 137,144, 238 wife: 'bad father' behaviour, 216; changing legal constructions, 151-2; destructive to husbands and children, 129-30; as mediator, 117-18,143; and system conflated, 223-4

Index 281 Wilton, A. See MacDonald, J. and A. Wilton Winkler, W.A. See Victor, I., and W.A. Winkler women: civil rights, 34, 245n.6; control, 185; court's bias towards, 2045,216,234; economic vulnerability, 207-8, 232,234-5; FSP protection of, 186-7; initiate divorce, 34; and mediation, 56; obligation to finan-

cial independence, 152-3,212,221; perceived as winners, 23,224,239; relationship responsibility of, 28 women's movement, 126; emasculation of men, 19-20; father as victim, 223—4; men's resistance to changes, 32 women's rights, 34-5, 57, 245n.6 working conditions: gender roles, 28 Writ of Execution, 45