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Jurisfemme
Volume 21, No. 3 Fall 2002
ISSN 0835-0892
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In this issue: FINDING ANSWERS: THE KIMBERLY ROGERS INQUEST FIRST NATIONS GOVERNANCE ACT: Same old Indian Agent Mentality [HALF PAGE AD] Canadian Journal of Women and the Law CAEFS HUMAN RIGHTS CONSULTATION PAY EQUITY: REQUIRED CHANGES IN FEDERAL JURISDICTIONS BOOK REVIEW: SUSAN B. BOYD, CHILD CUSTODY, LAW, AND WOMEN'S WORK WHERE IS THE GOVERNMENT GOING ON CUSTODY AND ACCESS? REINVENTING GLOBALIZATION AND THE POWER OF POSITIVE THINKING Claire L'Heureux-Dubé Fund for Social Justice
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FINDING ANSWERS: THE KIMBERLY ROGERS INQUESTBy Kim BrooksAt its most extreme, the criminalization of poverty costs lives. That is exactly what happened to Kimberly Rogers. Kimberly RogersKimberly Rogers was charged and pled guilty to welfare fraud in April 2001. She had collected social assistance and failed to report that she was collecting student loans simultaneously. Social assistance recipients cannot also collect student loans without a reduction in their social assistance payments. Justice Greg Rogers sentenced Kimberly Rogers to 18 months probation and imposed a six-month conditional sentence. For the six-month period, Kimberly Rogers was required to stay in her apartment. She was only permitted to leave once a week for three hours. In addition to these penalties, she was ordered to pay $13,372.67 restitution. The punishment did not stop with Justice Rogers' judicial sentence. Ontario's social assistance regulations (under the Ontario Works Act) required Kimberly Rogers' social assistance to be cut off for three months. She was cut off even though she was pregnant at the time. In May, Kimberly Rogers began a constitutional challenge to the regulations. Her application for interim relief, heard by Madam Justice Epstein, was granted and Kimberly Rogers' social assistance payments were reinstated. The effect of this decision was limited to Kimberly Rogers, and was focused in particular on the dangers of denying social assistance payments to a pregnant woman. To give some shape to the amount of the benefits that Kimberly Rogers received, as a single person, she was entitled to $520 per month and a drug card. She had rent payments of $450 per month, and was required to pay $52 per month against her overpayment. Even though Justice Epstein's judgment was a victory, it left only $18 per month for food, telephone, clothing and other expenses. Not surprisingly, Kimberly Rogers was taking anti-depressants. She was unable to afford the basic necessities for living. Her apartment was unbearably hot, and the house arrest made it extremely difficult to seek assistance or community support. Kimberly Rogers died on August 9, 2001 in her apartment in Sudbury. The jury at the inquest into her death will determine the cause of death. The InquestThe inquest into the death of Kimberly Rogers was announced on September 24, 2001, and began in Sudbury on October 15, 2002. Its purpose is to examine the circumstances surrounding Kimberly Rogers' death and perhaps make recommendations aimed at preventing future deaths. NAWL is co-intervening in the inquest with the Canadian Association of Elizabeth Fry Societies, the Women's Legal Education and Action Fund, and the National Anti-Poverty Organization. The aim of our coalition is to identify the effect of the federal government's approach to criminal and social justice on the abrogation of provincial and municipal responsibilities to poor women. We also seek to demonstrate how the federal government's approach has resulted in the increased feminization of poverty and the criminalization of women who are indigent, mentally and/or cognitively disabled and otherwise marginalized. The coalition is fortunate to have Chantal Tie and Jennifer Scott acting as counsel. Extrapolating from the SpecificsKimberly Rogers' death is a tragedy, and one that should cause national alarm. But it was not unpredictable. It can be located within the context of increasing criminalization of poverty. Our abandonment of low-income Canadians began most obviously in 1995, when the federal government repealed the Canada Assistance Plan and its standards for social assistance. The only remaining standard is that a province cannot require a minimum period of residency for social assistance recipients and still receive a federal government transfer payment to support the provincial social assistance regime. The Ontario provincial government has followed the federal government's indication that abandoning poor people is acceptable, and even appropriate. Social assistance payments have been dramatically cut, work-for-welfare programs have been implemented, mandatory drug and literacy testing have been proposed, and welfare fraud charges have become more common. The rules that lead to the three-month suspension of Kimberly Rogers' social assistance payments have subsequently been made even more punitive; for welfare fraud convictions that relate to periods that occurred in whole or in part after April 1, 2000, the claimant is cut off from receiving any benefits for life. A constitutional challenge to the lifetime ban has been initiated (Broomer v. Ontario (Attorney General), interim decision [2002] O.J. No. 2196 (QL)). Government portrayal of low-income people as cheats is picked up in the media, and the result is increased public acceptance of poor bashing. All of these changes have negative effects on women, and particularly on single mothers. Poverty leaves people in precarious life situations. The government has an obligation to provide support to low-income folks, not to criminalize people who lack economic power. Kimberly Rogers' treatment is just one illustration of the human rights violations that the new Ontario social assistance rules require. Her house arrest was a cruel form of punishment - only in the most extreme cases should "prisoners" be placed in solitary confinement, and yet for just under $14,000 we imposed that sentence on Kimberly Rogers. Hopefully the inquest will result in recommendations that will be acted upon in order to ensure that this kind of tragedy does not occur again. Kim Brooks teaches torts and tax at Queen's University, Faculty of Law and is a co-coordinator of NAWL's National Steering Committee. |
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Civil Union and the New Filiation Rules in Quebec: from Ignorance to the Legal Recognition of the Homoparental Familyby Marie-France BureauQuebec's Draft Bill on Civil Union In December 2001, Quebec's Minister of Justice tabled a draft bill recognizing civil unions for same-sex couples. In its initial form, this new civil status included only same-sex couples. The new legislation creates a form of legal union almost identical to the status associated with marriage that goes much further than legislation adopted in most other jurisdictions where forms of partnerships open to same-sex couples have been recognized. Indeed, Quebec's initial civil union proposal recognized nearly every right and obligation associated with marriage (including the conditions of forming and celebrating a union, matrimonial regimes and rules concerning family patrimony). But it fell short of amending the Québec Civil Code provisions related to filiation (the relationship of a child to a parent) and parental authority. The Minister of Justice indicated that he wanted to consult the public on this issue and hoped to include parental rights in the government's final bill. To this end, a parliamentary commission was held, with discussion focussing on eventual amendments to the Québec Civil Code provisions on filiation, parental authority and the equality rights of children from homoparental families. The opportunity of extending civil union status to heterosexual couples also figured prominently in the public consultations held in Québec City in February 2002. Among the organizations and individuals who came forward during these consultations were many lesbian mothers who described their situation and explained why it was vital for them to receive social recognition regarding parenting and filiation. First and foremost, they saw legislation that would recognize the official status of two parents as a way of protecting both their children and all children in Quebec. Amending the rules of filiation was also seen as a matter of equality, respect and acceptance of the reality of homoparental families in a society open to diversity. Children who had been raised by homosexual parents also told their stories and explained why they felt that full legal recognition of homoparental families was essential in changing negative attitudes towards children in their situation and in ensuring respect and dignity for families like theirs. Other large, non-governmental organizations such as the principal labour unions, the Fédération des femmes du Québec, the Commission des droits de la personne and McGill's Centre of Private and Comparative Law all supported the demands of homoparental families and of the participating gay and lesbian organizations by recommending that the filiation rules be amended. Many organizations, individuals and experts also insisted on the importance of extending civil union status to both heterosexual and same-sex couples in order to avoid creating a separate civil status that, apart from being perceived as segregationist, ran the risk of further stigmatizing the couples who were contemplating entering into a civil union by forcing them to request a permanent homosexual status. To understand the depth of this concern, one only has to consider the problems associated with homosexual civil status in certain work environments or the perils of this status in countries where homosexuality is still a crime. An Act instituting civil unions and establishing new rules of filiation At the end of these public consultations, the Minister tabled a substantially modified bill that made civil union accessible to both same-sex and different-sex couples (the text of the new Act is available on the Quebec National Assembly Web site at: http://www.assnat.qc.ca/eng/Publications/Projets-loi/Publics/). Bill 84 confirms the right of gays and lesbians to adopt children, either individually or as a couple, and it introduces new filiation rules regarding assisted procreation. These new rules also determine that lesbians who have children on the basis of a joint parental project may be recognized as parents whether they are related by a de facto or a civil union relationship. This Act was adopted unanimously by Quebec's National Assembly on June 7, 2002 and came into force on June 24, 2002. a) Civil union Unlike Vermont's civil union model, which is exclusive to same-sex couples, the government of Québec chose to create a new conjugal status for both same-sex and different-sex couples wishing to publicly commit to sharing a life together, with all of the rights and obligations that this status entails. Henceforth, the conditions, rights, obligations and effects related to this union are established in the Québec Civil Code (in many cases, simply through their reference to marriage regulations). The new Act also modifies some 54 Québec laws, to recognize the fact that persons entering into a civil union now have essentially the same rights and obligations as married spouses.
On the other hand, it is important to note that divorce legislation does not apply to this provincial institution and, therefore, that the provisions concerning de facto parenting (dependant children) and related jurisprudence does not apply in case of separation. Québec still has a great deal of ground to cover when it comes to ensuring the responsibility of adults who have played a parental role in a child's life. This issue will likely be the subject of much debate in the coming years. It must also be noted that, despite their similarities, civil union and marriage are not one and the same. Although this legislation went as far as the provincial legislator could go within his purview, many still see it as a compromise. A number of gays and lesbians feel that civil union is merely an ersatz of marriage and that the full civil participation of sexual minorities depends upon their access to marriage and the full symbolic value associated with this institution. Others view this new status as a golden opportunity for couples to acquire the legal protection afforded by marriage while entering into a civil and secular union that is free of patriarchal or religious antecedents. In this sense, civil union and marriage may come to be seen as relative options, thereby modernizing the organization of conjugality. b) Parental status The new Québec legislation is distinct from many other alternatives to marriage, such as those adopted in Scandinavian countries, France or the Netherlands in matters of parental status. The Québec legislator chose to recognize homosexual filiation and, as much as possible, to accept same-sex parents and different-sex parents on equal terms.
c) Consent to care The new Act now stipulates that when a person who has reached the age of consent is no longer able to consent to receive care that is required by his or her state of health, the first person authorized to provide consent (in the absence of a specific authorization to this effect) shall be his or her married, civil union or de facto spouse. This provision answers the demands of countless organizations representing gays and lesbians who deplored previous the legislation authorizing only married spouses to consent to care (to the great detriment of same-sex partners). This change is certainly substantial, but it remains to be seen how medical institutions will manage consent from de facto spouses where there is no legal definition or proof of the relationship. Marie-France Bureau has been a member of the Barreau du Québec since 1997 and she is currently completing her Masters degree at McGill University. Her field of research is family law reform. |
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FIRST NATIONS GOVERNANCE ACT: Same old Indian Agent MentalityBy Terri BrownThe Native Women's Association of Canada (NWAC) strongly believes that the perspectives of Aboriginal women must be taken into account when proposed changes to the Indian Act and the proposed First Nations Governance Act are considered, particularly because Aboriginal women have been "multiply disadvantaged" and discriminated against based on race, class and gender for too long. Understanding the contemporary life circumstances of Aboriginal women plays an important role in guiding the work of NWAC. We urge the Federal government to include our perspective in any further consultations, discussions, and debates regarding the Indian Act and proposed First Nations Governance Act. As the national body, duly mandated by all our member groups to represent the issues and concerns of Aboriginal women, NWAC should be involved in consultations between First Nations and Indian and Northern Affairs Canada (INAC). NWAC has been in existence since 1974 and is mandated by its national membership to be the national voice for Aboriginal women. NWAC has been active for many years in representing the issues and concerns of Aboriginal women in Canada. We have fought hard for the inclusion of our perspective on national issues of importance. It is essential that government continue to recognize NWAC for the important and necessary role that we play in bringing forward the unique perspective of Aboriginal women. NWAC is therefore concerned that the Honorable Robert D. Nault, Minister of Indian Affairs and Northern Development, has not appointed a member of NWAC to the Joint Ministerial Advisory Committee for the First Nations Governance Initiative (FNGI). Minister Nault's position too closely reflects the position taken by the government during the Charlottetown Accord debates, when NWAC was required to fight in court for recognition of the importance of our involvement on issues of national importance to Aboriginal peoples. Yet again, we find ourselves in the position of forcing government to recognize the importance of our involvement on issues of national importance to Aboriginal peoples. Minister Nault established an agenda on the First Nations Governance Initiative without adequate consultation with NWAC and money was offered to NWAC to proceed in keeping with a pre-established agenda. The agenda was not reflective of Aboriginal women's core issues including membership, nationhood, and matrimonial property rights. Sadly, the old game of "divide and conquer" still works for some. The First Nations Governance Initiative was discussed at the Assembly of First Nations Confederacy meeting in Halifax last year. NWAC agreed that a meaningful consultation process should be developed by INAC in partnership with First Nations. We chose to place our involvement in abeyance until Minister Nault and First Nations could develop a consultation process that was respectful and in partnership with First Nations. We asked for a three-month freeze on the FNGI. NWAC's decision to ask for a meaningful process has led to exclusion from further involvement and funding. NWAC recognizes that accountability, elections procedures and questions of legal entity are problems within our communities. However, they are not the only issues for Aboriginal women. Issues faced by Aboriginal women in our communities strike at the very heart of our Nations. If we do not advocate for these key issues, who will? Male Aboriginal leaders do work to advance the issues of Aboriginal women, but 500 years of colonization has displaced Aboriginal women and the role of women in communities. The Indian Act created the Chief and Council governance structure, and now the male leadership speaks as if the structure belongs to us. We must work toward the elimination of racial, class and gender discrimination against Aboriginal women everywhere. Without the ability to determine membership and nationhood, our children have a bleak future. The current child registration process is shaming and degrading to Aboriginal women; the Indian Agent still has the power to determine who is an Indian. Inclusion, coupled with meaningful consultation, is key to strong legislation. However, we fear that the Government has not learned its lesson. For example, the Consultative Process, Phase 1 was a sham. The Department of Indian and Northern Development (DIAND) conducted consultations with less than 1 per cent of the Aboriginal population. We do not know who was consulted or whether they were, in fact, First Nations. Many DIAND employees were counted among those consulted. The DIAND is very proud of having for the first time consulted directly with First Nations community members.
As the above quote suggests, NWAC's struggle has been long and difficult. Our grandmothers, mothers and sisters fought for necessary change and for the enlightenment of our nations, government and the world about the Indian Act's blatant discrimination. The late Mary Two Axe Early, and Jane Gottfriedson among our founding grandmothers, and many other Aboriginal women, dedicated their lives to change. NWAC exists because of these women warriors. Sandra Lovelace and Jeannette Corbiere-Lavell brought the plight of Aboriginal women to the United Nations before changes were realized. Despite the apparent victory of Bill C-31, women and children still face discrimination through exclusion from membership and nationhood. Aboriginal women need to re-establish the traditional role in governance structures and decision-making processes. To do otherwise means continued oppression. If we falter, we have little hope for tomorrow. The re-establishment of our traditional role will counteract the impact of colonization. In fact, the strength of Aboriginal women has maintained our Nations in the face of the worst human tragedies such as abduction of Aboriginal children (the sixties scoop), apartheid-like policies, the residential school system, loss of land, culture and language. The future is bleak with or without the proposed First Nations Governance Act. The Act will not eliminate systemic racism, and the rape and murder of Aboriginal women. As I write, the biggest mass murder investigation continues on a pig farm in B.C. Of the victims identified and missing, half are Aboriginal women. We have a long way to go to achieve justice and security for Aboriginal women. We do not want government and legislative processes to go backward. Our history clearly depicts a time when the Indian Agent was all-powerful: the Indian Agent determined membership, allocation of resources and benefits, negotiation of land (actually there was no negotiation, it was blatant theft), and relocation. The Indian Agents came with peace treaties that were forged and they bribed, threatened and coerced Indians to give up their lands and their children's future. Over time, the peace treaties were misinterpreted and evolved into agreements that gave up rights to land and resources. The Indian Agent possessed power over Aboriginal Peoples. The process was flawed then, and it is flawed now. We have little interest in a governance agenda that will perpetuate sexism, racism and classism. The formula does not work anymore. If there is to be real change, we must demand a meaningful, inclusive process, with openness and transparency. Dissident groups such as ourselves face funding cuts, manipulation, marginalization and silencing tactics because we dare to criticize an unfair process. Colonization and its cohort, patriarchy, has left a legacy of internalized racism, poverty, violence, and loss of hope, manifested by the highest rate of suicide among youth in the world. The Indian Act must be dismantled, not changed. We cannot uphold a piece of legislation that has nearly destroyed our way of life and nearly eliminated our people. We will make our ancestors proud by continuing the struggle they started so long ago. Our vision of freedom, independence and honour must be pursued at all costs. We have much to lose. Until next time, may Creator keep you safe and strong!
Mussi Cho Kukdookaa Terri Brown is the President of the Native Women's Association of Canada. |
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[HALF PAGE AD] Canadian Journal of Women and the LawVolume 14:1: Women and Poverty: The Challenge of Social and Economic RightsFeminist activists and scholars consistently argued that equality rights guarantees would be of little value to women unless they were read as a source of substantive governmental obligation to address the real life circumstances of women's lives. The latest volume of the CJWL, Volume 14:1, is devoted to the theme "Women and Poverty: The Challenge of Social and Economic Rights". The collection of papers in this special volume builds upon the fundamental premise that the social and economic marginalization of women must be understood as an issue of basic human rights and not merely of social policy. The authors draw our attention to recent international and comparative law developments in the area of social and economic rights and their particular significance for women. Several themes unite the contributions to this volume: the importance of a substantive rather than merely formal understanding of equality in developing social and economic rights norms; the indivisibility of different generations of human rights; the impropriety of giving civil and political rights priority over social and economic rights; the need for positive action by governments to further women's equality, and the importance of effective judicial remedies for violations of women's social and economic rights. Against the backdrop of these commonalities, the articles range from the international to the domestic front, from the interpretation of UN conventions and other international human rights instruments to their use in domestic contexts such as housing, social assistance, and budget policy. Domestic policy issues in Canada (including the issues arising in Gosselin v. Québec), Nigeria, and Mexico receive attention. The contributors to this special issue include Dianne Otto, Lucie Lamarche, Leilani Farha, Reem Bahdi, Helena Hofbauer, Joy Ngwakwe, and Gwen Brodsky and Shelagh Day. Subscription information is available at http://www.utpjournals.com/jour.ihtml?lp=cjwlsplash.html |
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CAEFS HUMAN RIGHTS CONSULTATIONBy Kecia PodetzOn October 3 and 4, 2002, NAWL representatives participated in a two-day consultation coordinated by the Canadian Association of Elizabeth Fry Societies (CAEFS). A number of national equality seeking women's organizations were in attendance, as were other organizations that had previously expressed interest in the treatment of women serving federal sentences in Canadian prisons. The impetus for the consultation was a request made by CAEFS to the Canadian Human Rights Commission (CHRC) to conduct a systemic review of the situation of women serving federal sentences. Additional organizations, including NAWL, have formally added their names to CAEFS' request for a review. The two-fold purpose of the consultation was for CAEFS to obtain direction and feedback from participants to inform CAEFS' submission to the CHRC and to work with the organizations present to ensure that the CHRC receives other submissions. The unjust treatment of women serving federal sentences has been well documented in numerous reports, including the 1996 report of the Arbour Commission. At a minimum, CAEFS hopes that the CHRC will detail the treatment of women serving federal sentences, and make strong recommendations to Correctional Services of Canada. Organizations represented at the consultation have been asked to provide letters of support and/or individual submissions to the CHRC. NAWL has formed a new working group on Women in Conflict with the Law, which will continue to work with CAEFS on the systemic review, and related future initiatives. Kecia Podetz is a member of NAWL's National Steering Committee and NAWL's Women in Conflict with the Law working group. |
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PAY EQUITY: REQUIRED CHANGES IN FEDERAL JURISDICTIONSBy Louise AucoinNAWL's Working Group on Pay Equity (members include Louise Aucoin, Claude Bernier, Andrée Côté and Sheila Gibb) recently submitted a brief to the federal Pay Equity Task Force. The Honourable Anne McLellan (then Minister of Justice and Attorney General of Canada) and the Honourable Claudette Bradshaw (Minister of Labour) established the Task Force on June 19, 2001 to review section 11 of the Canadian Human Rights Act (CHRA), the federal pay equity legislation. It was mandated to develop appropriate recommendations in determining how pay equity should be implemented in federally regulated workplaces. Major pay inequities exist between Canadian women and men whose work is of equal or comparable value. Pay equity legislation calls on employers to compare the value of female-dominated jobs with that of male-dominated jobs: if the value of the former is equal or comparable to the latter, then the wages paid must be equal. It was particularly important for NAWL to apprise the federal Task Force of its concerns in this area since we are committed to:
NAWL's Pay Equity Working Group holds that every woman experiences inequality differently due to systemic discrimination on the basis of race, class, sexual orientation, disability, age, language and other factors. NAWL's brief was written in the spirit of fostering a just and egalitarian society that recognizes and values diversity. One of the main obstacles to substantive equality for all women is wage inequality. CANADA'S INTERNATIONAL OBLIGATIONS Pay equity has been internationally recognized as a fundamental human right. Canada is a signatory to several international instruments, including the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) that calls for the respect and implementation of women's human rights. Moreover, in The Federal Plan for Gender Equality, Canada acknowledges that, according to CEDAW, "the effects of legislation must be taken into account in determining whether it is discriminatory, and … positive-action measures are sometimes necessary to correct historical patterns of discrimination." Canada is bound by many international instruments promoting equal rights, but by ratifying CEDAW the Canadian government committed to take appropriate measures to secure pay equity. DOMESTIC OBLIGATIONS The Canadian government also has a domestic obligation to enforce pay equity. The Working Group holds that any legislative pay equity scheme will have to take into account the constitutional protection provided under section 15 of the Canadian Charter of Rights and Freedoms, as interpreted in Andrews. The Supreme Court of Canada then declared "... that every difference in treatment between individuals under the law will not necessarily result in inequality, and, as well, that identical treatment may frequently produce serious inequality." According to sections 11(1) and 11(5) of the CHRA, it is a discriminatory practice to pay unequal wages to men and women who perform work of equal value; gender considerations do not justify any difference in wages. Article 11 has neither been amended nor comprehensively reviewed since it received Royal Assent in 1977. A comprehensive review of section 11 of the CHRA and of the 1986 Equal Wages Guidelines is therefore of critical importance. THE NEED FOR REFORM Under the existing scheme, when an employee or a union believes that an employer is in violation of section 11 of the CHRA, he or it can file an allegation or complaint with the Canadian Human Rights Commission. A commissioner will investigate and determine the merit of the charge. If the commissioner deems that there is sufficient evidence to support the allegation or complaint, he or she then decides whether to dismiss it, call in a mediator to attempt a settlement, or refer the matter to a human rights tribunal, where the entire case will be heard. Although this complaint-based model may seem efficient, in reality, the procedure involved is extremely lengthy, inefficient and fraught with delays. For these reasons, victims are discouraged from filing complaints and are ill-served by the current process. One can only conclude that, for lack of proactive legislation, progress has been minimal. NAWL'S RECOMMENDATIONS Therefore, NAWL has made the following recommendations: The government must draft clear, unambiguous and proactive pay equity legislation and that this legislation be an affirmation of the fact that pay equity is a fundamental human right, protected under the Canadian Charter of Rights and Freedoms and international human rights law, that:
Moreover, it is essential that the new legislation create a separate pay equity commission and a specialized independent tribunal. This commission must be equipped with sufficient resources to help businesses set up pay equity programs, to develop instruments to facilitate the implementation of such programs and the achievement of pay equity in businesses, and to provide training and technical support in job evaluation, job comparison and wage adjustment methodology. To better support employers and organizations representing workers, the commission must also disseminate information that will foster the understanding and acceptance of the role and the provisions of this legislation. It is NAWL's hope that the new federal pay equity legislation will play a decisive role in achieving gender equality, so that the true worth of all women's work might finally be recognized in dollars and cents. If you would like a copy of our brief, please send an email to info@nawl.ca. Louise Aucoin teaches labour law, environmental law, municipal law and testamentary law at the Faculty of Law at the Université de Moncton, in New Brunswick. |
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BOOK REVIEW: SUSAN B. BOYD, CHILD CUSTODY, LAW, AND WOMEN'S WORK (Oxford University Press, 2002)Reviewed by Mary Jane MossmanChild Custody, Law, and Women's Work is an important book: for legislative policy makers, for judges and lawyers, and for women and men who want to understand the complex legal and social context of child custody and access in Canada. Boyd's book provides a detailed examination of child custody law in Canada. It starts by examining the history of legal principles of custody, principles which included a legal presumption of paternal custody in the 19th century, and which were only gradually revised to recognize the suitability of mothers to have custody of their children, particularly in the early 20th century. Boyd's review of reported cases reveals these patterns of judicial decision-making and the ways that judicial language reflected implicit and gendered norms of "good" parenting. This historical analysis is important, not just to document the changes that occurred in the law of custody over time, but also because the history clearly demonstrates how legal principles have shifted in different social and economic contexts. Boyd's efforts to incorporate data from sociological and other studies are significant, revealing how actual practices sometimes diverged from legislative principles, and how the rise of equality discourse in the 1970s and 1980s focussed so often on formal, rather than substantive, equality. As Boyd argues, this focus resulted in the rejection of the "tender years" doctrine (although, as Boyd notes, this doctrine had a number of limitations); but it also masked the significance of caregiving in determinations of custody and access. As a result, access rights expanded and custody rights diminished. In the words of Carol Smart, "caring about" children began to be equated with "caring for" them, with the former creating mostly (men's) "rights" and the latter creating mostly (women's) "responsibilities"(Smart: 1991). Yet, even though the practices were gendered, this problem was rendered almost invisible by a discourse of formal equality. In this context, Boyd's book represents a major contribution, reassessing legal principles of custody and access in the "real life" circumstances of women and men who are parents. This book is also useful for its national focus. In spite of some differences in the wording of provincial legislation prior to the first federal divorce legislation in 1968, her analysis demonstrates a remarkable consistency in decisions in various provincial jurisdictions, a situation which also reveals connections between legal and social contexts. The book is particularly interesting because it includes not only discussion of common law provinces, but also some references to the Civil Code of Québec in relation to both principles and interpretations. It also includes references to social science studies, particularly in Canada and the United States, a number of which confirm that men and women tend to succeed in litigated custody cases in about equal numbers. As Boyd argues, these "real life" circumstances belie the arguments often presented in the 1990s policy debates that courts have tended to favour women in custody awards. The research suggests that in cases which are settled by negotiation, by far the vast majority of cases, the parties agree that women should have custody and provide primary care to children. Boyd's analysis is most significant, in my view, for its detailed review of governmental policy proposals in the past decade. Focussing on three federal discussion papers and the work of related parliamentary committees since 1993, Boyd shows how the discourse of formal equality has erased the reality of women's work of caring for children. Efforts to promote formal equality have resulted in gender neutral approaches, which have tended to ignore women's care-giving responsibilities at the same time as they fail to take account of social and economic circumstances which continue to disadvantage women in the paid workforce: problems of pay equity, the lack of affordable child care, and shrinking resources for education and health care, all of which negatively impact on those with primary responsibilities for children. As Boyd astutely argues, however, recognition of a primary caregiver presumption in law would exacerbate women's responsibilities without addressing the need for greater social supports for parents; thus, by itself, it does not offer a real solution for reforming the law of custody and access. Instead, law reform needs to recognize women's actual responsibilities for caregiving, without reinforcing gendered expectations about their "natural" roles. In addition, this book is especially significant because it provides an assessment of the results of "shared parenting" regimes, which were introduced in Australia and in the United Kingdom a few years ago. In reviewing legal decisions, sociological studies, and governmental policy assessments of these new regimes, Boyd demonstrates that the message is clear: "shared parenting" regimes (and the abandonment of legal concepts of custody and access) fail to achieve their objectives in contested cases. In non-contested cases, of course, parents may well agree to shared parenting arrangements (perhaps without much knowledge of the legal norms), so that the new legal principles add little, if anything, to family law dispute resolution. More worrying is that the evidence in Australia and the U.K. suggests that "shared parenting" principles have tended to exacerbate risks of continuing abuse and the exploitation of those in less powerful positions, frequently women. As research in the U.K. documented, "shared parenting" has been implemented as a de facto presumption in favour of ongoing parental contact, so that "potential risks to children's well-being and safety, and the well-being and safety of residential mothers have been ignored or downgraded (Smart and Neale, 1997)." In a context in which recent recommendations for reform in Canada have demonstrated substantial preference for "shared parenting" regimes, the experiences in these other jurisdictions should sound an alarm. In the end, Boyd's book represents a detailed and thoughtful assessment of one of the most difficult, divisive and challenging issues of social policy in Canada in the 21st century. By analyzing the legal issues in a social and economic context, and by taking account of the need to promote substantive gender equality in family relationships and in Canadian society, Boyd has made a major contribution to our understanding of the issues and a persuasive argument for legal and social reforms that reflect the reality of parenting in Canada. In the context of great controversy about gender in relation to legal principles of custody and access, it is a measure of Boyd's accomplishment that she has expressed her views forcefully and persuasively, but without polemics. For thoughtful policy-makers, lawyers and judges, this book offers comprehensive information and careful analysis from the leading academic expert on the law of child custody and access in Canada: in my view, it should be required reading. Mary Jane Mossman is a Professor of Law at Osgoode Hall Law School, and has written about issues of family law, access to justice and women in law. |
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WHERE IS THE GOVERNMENT GOING ON CUSTODY AND ACCESS?By Andrée CôtéIn the September 30th Throne Speech, the Chrétien government announced that the Divorce Act would be amended to better promote the best interest of the child, unified family courts would be expanded, and mediation and counselling would be encouraged in lieu of litigation. The commitment is very vague for a government that has been doing extensive research and consultation on the reform of the provisions on custody and access in the Divorce Act for the last five years. In a speech given last August for his friends of the Canadian Bar Association (CBA), Minister of Justice Martin Cauchon was somewhat more loquacious: he announced that he may altogether abandon the language of custody and access. Some media reported that he would substitute it with the language of "parental responsibility", proposed by the CBA in June 2001. This is a surprising shift coming from a minister who last spring announced that he was not sure that any reform of the Divorce Act was necessary. It is even more surprising, given that in the course of a "stakeholders" consultation last May, he promised not to endorse the presumption of shared parenting that is being urged by the "fathers' rights" lobby. Does the Minister of Justice know where he is going in the reform of family law? New Trends with a Bad Track Record NAWL has urged the minister to proceed with utmost caution in this contentious area (see letter dated October 25, 2002 at www.nawl.ca). Indeed, this line of "new wave" reforms - to use Professor Susan Boyd's expression - has been tried in the U.K., Australia and in many U.S. states, where it has been shown to be ineffective in bringing about real change in favour of collaborative parenting. Studies have shown that even though lawyers and other professionals tend to adopt a de facto presumption of joint custody or shared parenting; actual parenting patterns are barely affected by this type of legislative change. The net result is disadvantageous for many, if not most, women who usually do most of the work as primary caregivers, yet receive little or no child support. In Canada, "shared parenting" or joint custody is already used to justify drastic reductions in amounts awarded under the Federal Child Support Guidelines. Studies have also shown that shared parenting can be the source of extensive litigation over the meaning of parental responsibility, its day-to-day exercise, and the specific parameters of the care and control that each parent is expected to exercise in regard to the child. In addition, abandoning the language of custody and access may create confusion around the interpretation of international treaties protecting children from abduction, such as the Hague Convention. Similar reform in other jurisdictions has been shown to subject women to constant contact and negotiations with their ex-spouse, and to control and coercion by those men who wish to use the law and the legal system as a tool for woman abuse. In addition, presumptions in favour of maximum contact and ongoing parental responsibility often expose children to situations that are not in their best interest, and may actually be detrimental or even dangerous. Does Minister Cauchon Care About Women's Equality? NAWL is alarmed that the Minister of Justice never makes public statements regarding the need to respect and promote the equality interests of women, despite the fact that many women's organizations across Canada have been urging him to do so. The Supreme Court of Canada has repeatedly stated that governments are constitutionally required by section 15 of the Canadian Charter of Rights and Freedoms to specifically address the impact that a law may have on women's equality rights. Madame Justice Claire L'Heureux-Dubé wrote in Willick v. Willick, ([1994] 3 S.C.R. 670 at 705) that the Divorce Act must be interpreted in a way that is "sensitive to equality of result as between the spouses" (emphasis added). She also stated in Young v. Young, ([1993] 4 S.C.R. 3 at 49) that we need to be "conscious of the gap between the ideals of shared parenting and the social reality of custody and childcare decisions" (emphasis added). Has the federal government been listening? NAWL is concerned that the government is engaging in law reform without having considered the underlying gender dynamics, nor the impact the reform will have in further entrenching women's inequality in the family; in short, this will not be in the best interest of children. We expressed these concerns in a brief developed in June 2001 in collaboration with the Ontario Women's Network On Child Custody and Access (OWNCCA), and in the subsequent months we lobbied the Justice Minister on these issues. In June 2002, we met with the All-Party Women's Caucus on Parliament Hill and spoke with MPs and senators from different parties, including the Honourable Jean Augustine, Minister Responsible for the Status of Women. A few days later, we met with Minister Cauchon, who was consulting with different groups on their recommendations for change to the Divorce Act. At the meeting, the minister expressed his desire to include references to equality in the Divorce Act, and to include specific criteria that should be used to interpret the "best interests of the child" test. Subsequent to the meeting, NAWL's Working Group on Family Law explored these questions, and submitted an analysis and concrete recommendations to the Minister of Justice. In our recommendations to the minister, the NAWL Working Group proposed that a preamble be added to the Divorce Act that would acknowledge the importance of ensuring that the Act does not entrench or exacerbate the existing disadvantage of women, that it respect and promote women's equality rights and in particular, women's rights to safety, autonomy and dignity. We recommended a series of principles by which the Act should be interpreted, as well as a detailed list of criteria that need to be taken into consideration when determining the best interest of children, including the safety and well-being of children and their caregiver, the importance of continuity of care, whether a parent has demonstrated responsible parenting in the past, the diverse realities and parenting practices in Canada, and the child's cultural and racial heritage. The text of the recommendations can be found at www.nawl.ca. A Call to Action! NAWL expects that the federal government will table a bill amending the Divorce Act this fall. In the weeks and months to come, it will be important for feminists and equality-seekers to mobilize their energies to help disseminate information and provide a critical analysis of the proposals. It will be equally important for as many people as possible to lobby the federal and provincial Ministers of Justice, as well as the ministers responsible for the status of women, on this issue crucial to all women. During the last few months, NAWL has been working with OWNCCA to develop a series of information sheets on the principal issues at stake for women: parenting after divorce, woman abuse, access to justice, the best interest of children and women's equality rights. The documentation will soon be available on the Ontario Women's Justice Network website (www.owjn.org). In addition, NAWL will post updated information about the lobby campaign at www.nawl.ca. We urge all our readers to get involved in the lobby campaign to ensure that women's substantive equality rights are effectively protected and promoted, and that children's best interests - not father's rights- are the primary criteria for determining parenting arrangements after divorce. For more information on how to get involved, please email Andrée at andree@nawl.ca. Andrée Côté is NAWL's director of legislation and law reform. |
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REINVENTING GLOBALIZATION AND THE POWER OF POSITIVE THINKINGBy Jackie F. SteeleIf there was one message that came strongly out of the Association for Women's Rights in Development Conference in Guadalajara, Mexico, it is that feminists worldwide need to start putting forth concrete and implementable alternatives to the current neo-liberal globalization model. While we have analyzed the economic policies and critiqued them from every angle, the time has come to push the agenda forward and demand that feminist economic policies be given serious consideration. We were reminded that for this to actually happen, any and all feminist economic agendas MUST be accompanied by a feminist political agenda. This was sweet music to my ears, and to those of my colleague, Nancy Peckford. Nancy and I attended the conference to host a poster session, and as members of a panel dealing with women's political engagement and strategies for the future. Bringing Nancy's experiences of the World March of Women lobby, and my fly-on-the-wall perspective of the limits to the power of the Liberal Women's Caucus, we spoke to attendees about the absence of genuine democracy in Canada as long as women MP's continue to stagnate at 20 per cent, and as long as the voices of feminist Canadians continue to be ignored both outside and within the walls of Parliament Hill. From both Nancy's and my perspectives, and in the face of advancements in India, Argentina, and South Africa, to name a few, Canada is not a model of democracy when it comes to the inclusion of women's voices, and those of other traditionally marginalized groups. With quotas of representation for either sex at 40 per cent-60 per cent in Argentina nationally and provincially, and a 33 per cent minimum quota for women in India locally, we are dismayed by the Canadian government's failure to uphold the section 15 equality guarantees of the Canadian Charter of Rights and Freedoms. On the contrary, Canada maintains an electoral system that is highly risk-averse, and the gatekeepers of Parliament, political parties, scare easily at merely the perception that one does not fit within the established "norm" for candidates. This is unacceptable in light of our Constitution's clarity on the use of affirmative action to offset the traditional old boy's networks that informally advance the candidacy of white men. Moreover, the insincere appeals from the Right for a system based on "merit", and "qualified candidates" leaves me laughing, after having witnessed firsthand the prowess and "quality" of the abundance of mediocre white male suits on Parliament Hill. Fellow panellist Veena Shayya, founder of Women's Political Watch in India, insisted that feminists must not apologize for supporting minimum targets, as they are not a "helping hand" to weak female candidates, but rather a right, in order to establish a level playing field and crash the system of informal affirmative action, or mentoring, that currently advances many an inexperienced male. As the result of a desire to provide impetus and information for Canadian women's organizations to mobilize toward truly representative democracy, NAWL will be hosting the Roundtable on Women and Politics in spring of 2003. At this consultation, we aim to discuss the many barriers to women's political participation and access to decision-making positions. We aim to generate concrete alternatives, such as providing access to childcare services at polling stations, setting limits to campaign spending, incorporating elements of proportionality into the electoral system, and using minimum targets to ensure the inclusion of historically underrepresented groups. We will need to mobilize all of our allies, academics, activists, current and past Parliamentarians, and like-minded organizations into a concrete political agenda for positive change that will help restore the semblance of representative democracy in Canada. With the support of feminists in progressive developing and developed countries around the world, reinventing globalization will slowly seep into the realm of the possible, but ultimately, it must begin at home. Jackie Steele is the coordinator of the National Roundtable on Women and Politics 2003. |
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Claire L'Heureux-Dubé Fund for Social JusticeMadame Justice Claire L'Heureux-Dubé has been a critical leader in the development of equality jurisprudence in Canada and internationally and a tireless advocate of social justice for all Canadians. To mark her retirement from the Supreme Court of Canada, to celebrate her remarkable contribution and to ensure that her legacy is furthered, the Faculty of Law of the University of Ottawa is establishing the Claire L'Heureux-Dubé Fund for Social Justice to honour her and continue her commitment to compassionate justice. Madame Justice L'Heureux-Dubé's judicial career has been distinguished by her concern for the impact of law on men, women, children, persons with disabilities, persons of colour, the poor, members of the First Nations and on issues of sexual orientation. Her recognition of the importance of law and legal education in addressing historical disadvantage presents an enduring legacy for social change. The Claire L'Heureux-Dubé Fund for Social Justice will further her domestic and international legacy of progress and sustain the momentum of her extraordinary contribution. In keeping with Madame Justice L'Heureux-Dubé's understanding of the urgency of equality in Canada and internationally, the Claire L'Heureux-Dubé Fund for Social Justice will provide support for a series of projects throughout Canada over the next decade. Proposed projects include clinical student programs providing legal services to disadvantaged communities, test case litigation, expansion of the social justice curriculum, summer programs for law students and community activists who seek to use the law as a tool of social change, workshops and speakers, and recruitment of students from under-represented communities, among others. For more information, please contact Constance Backhouse at (613) 562-5800 x3307 or backhous@uottawa.ca. |
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JURISFEMMEVolume 21, No 3 Fall 2002 Jurisfemme is a publication of the NAWL is a national non-profit women's organization which promotes the equality rights of women through legal education, research and law reform advocacy. We recognize that each woman's experience of inequality is unique due to systemic discrimination related to race, class, sexual orientation, disability, age, language and other factors. In our view, a just and equal society is one which values diversity and is inclusive of it. We are committed to working collectively and in coalition with other groups to dismantle barriers to all women's equality. Editors Jurisfemme Co-ordinator Sharmila Biswas-Mistry Publication Co-ordinator Sharmila Biswas-Mistry NAWL Staff and National Steering Committee National Steering Committee Regional Representatives |
