Return to Jurisfemme Directory
Jurisfemme
Volume 20, No 4 - Spring/Summer 2001
ISSN 0835-0892
Return to Jurisfemme Directory |
Jurisfemme |
|
In this issue: Women Launch Declaration Against War and Racism, for Peace and Justice Lessons Learned from Family Law — The Proposed Presumption in Favour of Shared Parenting In Whose Best Interests? Proposed Changes to Custody and Access Spousal Support and Pension Income in the Case of Boston v. Boston Consultation of Women Anti-Poverty Activists Kim Rogers: Death in the Modern Day Pauper's Prison The Women's Economic Equality Project |
Women Launch Declaration Against War and Racism, for Peace and JusticeWe wish to express out profound sorrow and shock at the devastation and tremendous loss suffered by our sisters and brothers in the United States of America. Our thoughts go to the innocent victims who died, and their families and friends who must now endure indescribable grief and sorrow. Nothing can excuse or justify what happened in the U. S., and we understand the need to bring those who are guilty of these attacks to justice. However, we are fiercely opposed to the vengeful and war mongering response that President Bush is proposing to the world, because it will inescapably cause the death of even more innocent victims. We want to underscore the fact that there have already been too many innocent victims of terrorism and war: the civilians who died during the bombardment of Baghdad and because of the embargo against Iraq, the massacres in Bosnia, the genocide in Rwanda, and those who were killed during the Vietnam war and in Hiroshima and Nagasaki. War is not the answer to the atrocious crime against humanity committed on September 11, 2001.While the desire for revenge undoubtably leads many to violence, our only hope resides in the difficult search for peace. A military solution would only bring us closer to war. We expect our governments to lead through compassion, justice and respect for the dignity of all people. Perpetrators should be brought to justice within the rule of law, with respect for their human rights and in conformity with international human rights law. Such acts of terrorism are a crime against humanity and should be brought before an international criminal court. We urge governments not to make hasty and unfounded assumptions about a connection between acts of terrorism in the U. S., immigrants living in Canada, and the immigration system itself. All immigrants and persons of colour must receive the full protection of the civil rights, equality rights and other human rights guaranteed in the Canadian Charter of Rights and Freedoms. The basic tenets of a free and democratic society must be respected, especially at a time like this. We are alarmed by recent acts o violence and outrage against Muslims, people of Arab or Middle-Eastern decent and other people of colour. Individuals as well as religious and community organizations are the target of a racist backlash. We are particularly concerned about the attacks against innocent children in schools, because for many, their religious faith makes them easy and visible targets. Governments must take urgent measures to denounce, stop, remedy and prevent these expressions of racism, hate and intolerance. Prejudices must be challenged in all their forms, and no individuals or group should be scapegoated because of race, colour, ethnicity, religion or culture. Women are usually the first victims of fundamentalism, war and injustice, and we are also very often the first to develop alternatives to violence. This is why true peace making must include women and their representative organizations in the process of finding solutions to international terrorism and war. It must also seek to remedy the cause of so many conflicts: poverty, injustice, sexual and racial inequality, ethnic and religious discrimination and the violation of the collective rights of peoples. During the World March of Women 2000, women's groups proposed many recommendations to the Federal Government towards eliminating poverty and violence against women that are essential in addressing underlying issues of justice and equality. We also proposed specific policies that would go a long way in creating a culture of peace on the international scene: we reiterate our demands that the federal government urge the U. N to end all forms of aggression and military occupation, assure the rights of refugees to return to their homeland, bring pressure to bear on governments to enforce the observance of human rights and strongly encourage other nations to support the jurisdiction of the International Criminal Court. Together we declare in all our different voices, from all our different places: We want peace and peaceful solutions
Canadian Women's March Committee If your organization wants to sign on to the Declaration, please write us at: womenmarchforpeace@yahoo.ca. |
|
Return to top Reproduction of articles from this site is permitted, provided that the source is cited. |
Lessons Learned from Family Law — The Proposed Presumption in Favour of Shared ParentingBy Martha McCarthyPart of the fallout from the passage of the Child Support Guidelines in 1997 was a political compromise, engineered by Senator Anne Cools, which required a study to be conducted on custody and access. It was felt that since men were getting such poor treatment with regard to child support, they were at least entitled to have a reconsideration of their rights and obligations with regard to children. The result was the creation of a Special Joint Committee on Custody and Access, which released a report in 1998, entitled For the Sake of the Children (available online at http://www.parl.gc.ca/InfoComDoc/36/1/SJCA/Studies/Reports/sjcarp02-e.htm). The report promotes a presumption in favour of shared decision-making, substantially equal time-sharing, mandatory mediation, and several other principles which appear to be blatantly father-focussed. In response to the joint committee report, a federal/ provincial "consultation" was undertaken. The consultation report, released in March of 2001, is entitled Custody, Access and Child Support in Canada: Putting Children's Interests First (available online at http://www.canada.justice.gc.ca/en/cons/consultations.html). The Consultation Document promotes a concept of "shared parenting," which is said to be an appropriate presumption for all separating families. One of the overarching observations to be made about the Consultation Document is that the father's rights lobby has made a significant impact. Father's rights groups have managed to influence the process so significantly that, as the Ontario Women's Network on Custody and Access responding brief (available online at http://www.owjn.org/custody/brief-e.htm#_edn54) points out, the word "woman" is not used even once in the entire Consultation Document. The focus is not on children, or caregiving patterns, or the individuality of each family. The main theme is the rights of the fathers. As a family lawyer practicing in Toronto, I have certainly seen the practical effects of the work that father's rights advocates have done. Even in the absence of the enactment of general rules with respect to "shared parenting," the notion that every father has an equal entitlement to custody or to equal time has taken hold of the judicial and public consciousness. All they want is equality, it is said, and how can anybody really argue against that as a general principle? More and more this is the starting point for judges and lawyers who are considering custody and access issues. What appears to be missing from this analysis and from the Consultation Document is an appreciation of the lessons that we have already learned in Canadian family law. The most significant of these is that, although general rules are attractive, presumptions just don't work and simply aren't fair. We saw this issue in sharp relief a number of years ago with respect to mobility. In a matrimonial case about whether a wife could move to a different province with her children, the Saskatchewan Court of Appeal boldly stated that there should be a presumption in favour of allowing a custodial parent, usually the mother, to move (Gordon v. Goertz (1995), 128 Sask. R. 156). This was attractive to many advocates since it reflected reality and fairness and, having the power of a "rule," it promised to significantly reduce disputes over mobility. However, when the issue was heard by the Supreme Court of Canada, the whole notion of presumptions was dismissed ([1996] 2 S.C.R. 27). The best interests of the child cannot be subject to generalizations. Each case, the court said, has to be decided on its own facts. Of course, the same analysis holds true with respect to custody and access. The best interests of the child test requires a consideration about this child in this family and this custody and access proposal. But it seems that this basic principle was overlooked during the consultations. So, too, were the many studies and theories that have been contributed by the mental health profession over the last three decades. Although we can argue about whether Judith Wallerstein is on track or completely out to lunch with respect to her long term study on the children of divorce, or whether Garrity and Barris' theories about appropriate access arrangements for children of divorce are accurate, or whether Janet Johnston or Richard Gardner have it right with respect to parental alienation syndrome, there is one thing that all of these experts agree upon. Each child is unique. General rules cannot be applied in a presumptive way to the lived realities of a child's existence. I have certainly seen this in my practice from day to day. I have seen a one-year-old who moves without consequence from one home to the other on an alternating-week basis (of course, his parents never fight, he has never known a unitary family, and his crib has matching bumpers in both houses). I have known five year olds who cannot be separated from their mothers for more than a few hours, and others of that age who have suffered from such serious regression after being in an alternating residence arrangement that drastic measures had to be taken to reduce access. Some kids can understand where they need to be on which day of the week; others can never keep track of their blankie or their baseball glove as they move from house to house. And, of course, the variation among parents and parenting abilities is massive. I once had a case where the husband was a child psychologist, but he had little or no capacity to parent his own children. Some dads are primary care givers. Some are abusive, and many threaten custody and access litigation as a means of effecting a beneficial financial settlement. One has to admit that the same variation exists among mothers, although even that generalization must be tempered by the fact that the vast majority of children continue to be raised by women. How can one set of rules reasonably be applied to all of these families and all of these children? The simple answer is that they cannot. Another lesson we have learned in family law on a more international level is that these imposed shared parenting regimes have had disastrous results in other jurisdictions. I was at a Conference last year at which Alistair Nicholson spoke about the Australian experience. He is the Chief Justice of the Family Court of Australia and is undoubtedly one of the most well-respected family law jurists in the world. Chief Justice Nicholson speaks with obvious regret about the absolute failure of a presumption of shared parenting in his jurisdiction. When I heard him speak, he began by describing all of the noble aspirations and high ideals that formed the background to the legislation. He then canvassed, in detail, how each hope was smashed by the daily realities in the family court houses in Australia: more motions, more disputes, increased pressure on women to take poor economic settlements in exchange for livable custody arrangements, increased pressure towards mediation in terribly power imbalanced situations — in general, increased parental conflict and poor results for the children in many, many cases. I was recently on a CBC television show (Counterspin, June 20, 2001) about the proposed presumption of shared parenting. The other panelists were Bonnie Diamond of the National Association of Women and the Law, Senator Anne Cools, and a representative of a father's rights organization. The level of conflict on the show and the divergent opinions were, perhaps, entirely predictable. But what I did not anticipate was that the common theme of the discussion would actually prove my point. Nobody likes generalizations. Anne Cools flew off of the handle if anyone suggested that there may be violent fathers in society; the father's rights advocate asked me what planet I was from when I said that men's claims to custody are being taken seriously and that the days of Kramer v. Kramer are over; the feminists (although of course eminently more reasonable than the others) got very upset when it was suggested that there is plenty of woman-initiated violence in marriages, or that most men are good parents. Each panelist, at one point in the hour, was deeply offended by a sweeping statement made by another. By the time the show concluded, it was perfectly clear: no one appreciates generalizations. In the context of matrimonial disputes, no one benefits from presumptive rules about these crucial and intimate details of family life, least of all the children. If we stop arguing about the factual elements behind our perspectives and listen to the broad theme that runs through the dialogue, perhaps there is room for some sort of truce. Each family has different dynamics and each child has her own unique needs and abilities. Maybe, just on this one little point, we might actually find some common ground. Martha McCarthy is a partner at Epstein, Cole, LLP in Toronto. She practises in the areas of family law and equality rights litigation. |
|
Return to top Reproduction of articles from this site is permitted, provided that the source is cited. |
Late Breaking NewsA disappointing judgement denying the right of same sex couples to marry was issued by the Supreme Court of British Columbia on October 2, 2001 (EGALE Canada Inc. et al vs Attorney General of Canada et al. 2001 BCSC 1365.) * See the judgement at http://www.courts.gov.bc.ca/jdb-txt/SC/01/2001BCBS1365.htm * See EGALE's press release at http://www.egale.ca/pressrel/011003.htm |
|
Return to top Reproduction of articles from this site is permitted, provided that the source is cited. |
In Whose Best Interests?
|
|
Return to top Reproduction of articles from this site is permitted, provided that the source is cited. |
What you can doAlthough a legal presumption of shared parenting will affect all women seeking a divorce and their children, the vast majority of women in Canada have not heard about shared parenting and are not apprised of its negative implications. At the same time, many men belonging to fathers' rights groups have been writing into the Minister of Justice with personal letters in support of shared parenting. Clearly, if the government is not presented with continued strong opposition and alternatives to shared parenting, we run the risk of its implementation and a fathers' rights approach to family law, as opposed to one that is child-centred and focused on equality. WHAT YOU CAN DO:
|
|
Return to top Reproduction of articles from this site is permitted, provided that the source is cited. |
Spousal Support and Pension Income in the Case of Boston v. Boston
By Natalie Venslovaitis This past July, the Supreme Court of Canada released its decision in the Ontario case of Boston v. Boston ([2001] SCJ No. 45, QL). The ruling addresses the issue of whether a pension income can be used as a source of spousal support after divorce. The facts of the case involved a traditional long-term marriage, during which Willis Boston supported the family financially while Shirley Boston maintained the home and cared for their children. Upon the dissolution of their marriage in 1994, the Bostons agreed to separate and divided their assets. As required by Ontario law, Willis' pension was included in the calculation of the couple's assets as part of the equalization of matrimonial property. In 1996,Willis Boston retired and began receiving his pension. In the same year, he applied to a court for a variation of his support payments. He argued that, because most of his pension had been "equalized" in the separation agreement, that portion should not be included as part of his income from which he would have to pay support. Otherwise, he argued, his former wife would be "double dipping," or collecting income from the same source (the pension) twice. A motions judge accepted the husband's position and reduced the amount of monthly support agreed on at separation from $3,433.12 to $950. On appeal, the support payment was raised to $2,000. Willis Boston appealed this order to the Supreme Court of Canada. Shirley Boston argued that the Ontario Court of Appeal's judgment was reasonable and should be maintained. The Women's Legal Education and Action Fund ("LEAF") intervened before the Supreme Court because the Boston case presented broad implications for the availability of spousal support for elderly women, particularly those who, like Shirley Boston, worked within the home during marriage and could never obtain the financial security of a pension. Further, while substantial assets were involved in the Boston case, many women are left impoverished after divorce. A recent gender equality study reveals that even women aged 45-64 who have worked outside the home earn "only 51% of their male counterparts. As retirement income is a function of lifetime earnings, women's low income in this age group means that they will be at great risk of poverty in their retirement" (Dr. K. Hadley, "And We Still Ain't Satisfied: Gender Inequality In Canada, A Status Report for 2001, released jointly by the Women and Economy Committee on the Status of Women and the CSJ Foundation for Research and Education, online at www.socialjustice.org). Sacrifices that women have made for their families, such as delaying their careers and devoting significant time to unpaid work within the home, also increases women's vulnerability to poverty upon divorce. In addition, women often require access to an ex-partner's pension for support because they are frequently employed in non-unionized, low-paying, part-time and/or temporary jobs. The study indicates that while the decline of good, unionized, full-time jobs in the economy has negatively affected both men and women," the vast majority — more than 72% — of part-time workers are women." With these realities in mind, counsel for LEAF, Nicole Tellier and Joanna Radbord, argued that the Court should avoid imposing a strict rule against "double dipping," and argued instead for an analysis of spousal support on a case by case basis. The Supreme Court ruling restored the motions judge's support award of $950. In arriving at this decision, the majority of the Court considered only the portion of the pension that was earned following the date of separation (the portion that was not included in the equalization of net family property). The majority ruling also supported a general rule of avoiding "double dipping" when possible. LEAF was disappointed that the majority chose the avoidance of "double dipping" as a starting point in law, but was pleased that the Court acknowledged that there may be situations in which double recovery is necessary. As such, the majority's decision reflects acceptance of LEAF's primary submission that there should be flexibility within family law to deal with support issues generally. The equalization process put a value on Mr. Boston's pension rights and allocated most of the matrimonial property to Ms. Boston. The dissenting opinion, written by Justice LeBel, noted that this arrangement left Mr. Boston with considerable financial security (Mr. Boston retained full rights to a pension that draws $8,000 per month), whereas Ms. Boston "got her long term security through the management of assets that must be used efficiently and remain exposed to a degree of market and economic risk." Justice LeBel further stated that spousal support cases like the Bostons' ... should not be overly influenced by catch words like "double dipping" and its alleged unfairness in the determination and process of support, where none really exists, once the legal principles are identified and applied. On the other hand, a lack of fairness should be found when a wife does not receive a level of support congruent with the lifestyle she enjoyed, although a separation or a divorce may lower the living standards of both parties. A spouse should not be penalized mainly because she adopted a moderate lifestyle and prudently invested her assets. The argument raised by the appellant, to a certain extent, reverts to the old idea that, after the breakdown of the marriage, the supported spouse is not really entitled to much more than a subsistence level income. The process of the division of assets must remain fair, but should also attempt to address in a realistic way the consequences of the breakdown of a marriage, in the context of the life experience of the spouses. The majority of the Court acknowledged that the treatment of pensions on separation and divorce is in need of legislative reform, stating that "the issue of how a payor spouse is to settle his equalization obligation would benefit from much overdue and much-need legislative attention." LEAF agrees that it is time for lawmakers to reform the way pensions are treated in family law so that couples are not forced into protracted and expensive legal proceedings. LEAF is a national, non-profit organization working to promote equality for women and girls in Canada. Using the equality provisions from Section 15 of The Canadian Charter of Rights and Freedoms as a basis to advance women's rights, LEAF presents arguments, or intervenes, in cases where women's rights are at risk in Canadian courts. Natalie Venslovaitis acted as the student research assistant for NAWL this summer. She is currently completing her second year of law school at the University of Ottawa. |
|
Return to top Reproduction of articles from this site is permitted, provided that the source is cited. |
Women's Poverty, Women's Equality: Supreme Court to Rule on one Woman's Claim to Social and Economic RightsBy Rachel CoxThe Supreme Court of Canada will soon be hearing a precedent-setting case about the right to adequate social assistance benefits. NAWL was granted leave to intervene in the case, to present a feminist analysis of the issue. Gosselin v. The Attorney General of Québec (27418) is scheduled to be heard in fall 2001. The case began in 1989, when Louise Gosselin brought a class action to challenge social assistance legislation in force at the time in Québec. Under the Regulation Respecting Social Aid, R.R.Q. 1981 c. A — 16, r. 1, employable single people under the age of 30 on social assistance received no more than approximately $170 per month. This represented about one third of the regular benefit paid to other adults. People under 30 years of age received the regular rate only if they participated in an employability program, which the vast majority of recipients under 30 years of age were unable to do. The "reduced rate", as it was called, was insufficient to allow people under 30 to meet even their basic needs for food, clothing and shelter. As the NAWL factum states, based on expert psychological and other testimony at trial, "[Young people] underwent extreme stress and had to resort to degrading and criminalized survival strategies such as begging and petty theft. They were often malnourished. The reduced rate was also associated with suicidal thought, suicide attempts and actual suicide." The factum also points to evidence that showed the particular hardships the reduced rate had on young women. In order to qualify for the regular assistance rate, some young women had children, but the particularly serious malnutrition resulting from trying to survive on the reduced rate in early pregnancy, meant that the babies were often low birth-weight. A number of young women engaged in prostitution or had to endure sexual harassment in order to keep their boarding house rooms, to pay for heat and electricity, and to buy food. The Québec government abolished the regulation in 1989, but not before many young people suffered under its harshness. Gosselin is suing the Québec government, seeking damages for herself and all the other young people who received the reduced rate of social assistance. She is also seeking a declaration that the legislation, which has since been repealed, was unconstitutional, violating both sections 7 and 15 of the Canadian Charter of Rights and Freedoms, and section 45 of the Quebec Charter of Human Rights and Freedoms. THE PITFALLS OF A FORMAL EQUALITY ANALYSISThe appellant Gosselin is arguing that the Social Aid Regulation discriminated against social assistance recipients on the basis of age, contrary to s. 15 of the Charter. In the lower courts, the s. 15 arguments were based strictly on a model of formal equality. So far, the debate has turned largely, if not exclusively, on the question of the explicit distinction between people over and under 30 years of age. The relative disadvantage of all people on social assistance, whether they are over or under 30 years of age, with or without children, alone or in couples, has been far from front and centre. Moreover, even though the plaintiff is a woman, very little attention has been paid to the regulation's specific, adverse effects on women, despite many illustrations of the specific effects that the Record contains. SHOULD ISSUES OF "SOCIAL POLICY" BE IMMUNIZED FROM CHARTER SCRUTINY?A majority of the Québec Court of Appeal 1 held that there was discrimination on the basis of age, but that "social assistance" as social policy, called for an elevated level of deference from the Court. The Court of Appeal promptly concluded that the age-based discrimination was justified under section 1 of the Charter. The Court's reasoning that social assistance benefits are a matter of "social policy" and "distribution of scarce resources" best left to the legislature, essentially immunizes discrimination in the social and economic arena from Charter scrutiny. NAWL'S POSITION ON THE EQUALITY ISSUENAWL's factum puts forth a substantive equality analysis that takes into account the fact that Louise Gosselin was poor, and a woman. Starting from this more holistic viewpoint, NAWL attempts to illustrate the true extent of the harm occasioned by the reduced rate of social assistance, including the specific and very grave harm caused to young women. NAWL argues that the severe poverty caused by the reduced rate of social assistance under the regulation diminished women's decision-making autonomy in their relationships with men — Louise Gosselin's own testimony furnished several eloquent examples — and increased women's vulnerability to violence and exploitation. Indeed, studies prove that homelessness and life in communal shelters — inevitable consequences of the reduced rate for certain women — significantly increase women's vulnerability to sexual assault and harassment. In concluding the discussion about both the immediate and long-term physical and psychological effects of the abject poverty caused by the reduced rate, the NAWL factum succinctly states, "When she reached her 30th birthday, and became eligible for the regular rate of social assistance, Ms. Gosselin felt as though she had won a victory simply because she had managed to stay alive." The NAWL factum emphasizes that access to adequate social assistance programs is a key issue for women, particularly for Aboriginal women, women who are recent immigrants to Canada and Quebec, and women with disabilities. Unless the Supreme Court overturns the Court of Appeal's ruling that essentially means issues relating to social assistance are immune from Charter scrutiny, equality rights will not mean much for the many women whose source of income is social assistance. SECURITY OF THE PERSONThe appellant also argues that the regulation violated her right to security of the person protected by s. 7 of the Canadian Charter. In other words, because the evidence showed that her social assistance benefit didn't allow her to have access to the most basic necessities of life, such as food, housing and clothing, it compromised her physical and mental integrity to the point where her security of the person was threatened. The Québec Appeal Court unanimously rejected the s. 7 argument, relying on the dichotomy between "civil and political rights" on the one hand, and "social and economic rights" on the other. Within traditional rights analysis, civil and political rights are considered to be justiciable. They are engaged solely through state action as opposed to inaction, and they are characterized as "negative rights." Conversely, social and economic rights are not considered to be justiciable. They are characterized as "positive rights" and the government is not, according to the traditional view, legally obliged to do anything about their realization. Even though it is obvious that lack of the means of subsistence can jeopardize human life, under the traditional analysis, since any right to financial assistance is seen as an economic right, last resort assistance is excluded from the scope of s. 7. THE INTERDEPENDENCY AND INDIVISIBILITY OF ALL HUMAN RIGHTSThe NAWL factum points out that the Canadian and Québec governments' commitments under international law belie such a compartmentalized and disembodied vision of human rights, particularly when it comes to women's right to equality. For example, the Beijing Platform for Action explicitly recognizes the connection between women's poverty and the increased likelihood of women being forced into situations in which they are vulnerable to sexual exploitation. The Platform commits governments to adopt economic policies to address the poverty of women. NAWL argues that in fact, access to adequate social assistance is fundamental to the equality rights of women, both because of women's disproportionate poverty and because of the particular ways in which the absence of adequate social assistance exacerbates and reinforces women's economic inequality, constrains women's choices, and ultimately subjugates women to men. In other words, NAWL argues that s. 7 rights must be interpreted through the lens of women's equality rights. AN ACCEPTABLE STANDARD OF LIVINGThe appellant is asking the Supreme Court to declare as well that the regulation was in violation of the right to social assistance set out in s. 45 of the Québec Charter of Human Rights and Freedoms. Section 45 provides that everyone in need has "a right ... to measures of financial assistance and to social measures provided for by law, susceptible of ensuring such person an acceptable standard of living." In spite of s. 45, a majority of the Québec Court of Appeal concluded that social and economic rights, such as the right to financial assistance of a person in need, are not enforceable rights. The Court refused to recognize that the courts have any right to review whether or not the financial measures provided for in the regulation actually ensured an acceptable standard of living. And while one dissenting Justice of the Court concluded that the reduced rate did indeed violate s. 45, even this Justice concluded that no remedy was available to the people whose rights had been violated. It remains to be seen how the Supreme Court will rule on these various points of law. One thing is sure, this case will be very significant for the equality rights of Canada and Quebec's most disadvantaged women, as well as for the recognition of social and economic rights as "real rights". MORE INFORMATIONMore information about the case, as well as the complete text of NAWL's factum, is available on NAWL's website at www.nawl.ca/projects.htm [In French: www.anfd.ca/projets.htm]. NAWL's factum was written by Gwen Brodsky in close collaboration with Rachel Cox, as well as members of the NAWL Steering Committee. The Charter Committee on Poverty Issues, Rights and Democracy and the Québec Human Rights Commission have also intervened in the Gosselin case. 1 Gosselin c. Québec (Procureur général), [1999] J. Q. no 1365 (Que. C. A.). Rachel Cox is a Montréal human rights and labour lawyer and a member of NAWL. Gwen Brodsky and Rachel Cox are counsel to NAWL for the Gosselin case. |
|
Return to top Reproduction of articles from this site is permitted, provided that the source is cited. |
CONSULTATION OF WOMEN ANTI-POVERTY ACTIVISTSIn March, in the course of preparing the factum on the Gosselin case, NAWL consulted with women anti-poverty activists. Meetings were held in Vancouver, Ottawa, Montréal and Indian Harbour (Nova Scotia). Over forty women with expertise about living in poverty shared their views on the Gosselin case and on the topic of women and social assistance in general. Women from a variety of groups expressed a keen interest in equality rights issues in the field of social assistance. Participants began to articulate a unique feminist analysis of women's right to social assistance. Interest was expressed in developing a network on women's social and economic rights and in looking at women's poverty as a violation of human rights. Watch for more news about follow-up to the consultation on the Gosselin case. |
|
Return to top Reproduction of articles from this site is permitted, provided that the source is cited. |
Kim Rogers: Death in the Modern Day Pauper's PrisonKim Rogers, eight months pregnant and serving a sentence of house arrest in Sudbury, Ontario, died in her small apartment on August 9, 2001 during the course of a record-setting heat wave. Two days passed before her body was found. Many see Kim Roger's death as the result of an absurd and excessive sentence acting in concert with the Harris' government's social assistance regulations. Since their enactment on April 1, 2000, the regulations impose a lifetime ban on claimants convicted of social assistance fraud. Rogers pled guilty on April 25, 2001 to receiving about $49,000 in student loans over the course of four years while she was in receipt of social assistance. She had attended Cambrian College in Sudbury and had just obtained a diploma in Social Work. The Court was informed that she was pregnant, suffered from chronic depression and often had to rely upon charity to afford medication and food. She stated that she was not told when she plead guilty that, in addition to a sentence ordered by the Court, she would be automatically suspended from social assistance for life by the province. In sentencing, Judge Greg Rodgers ordered Kim Rogers to serve six months of house arrest, allowing her to leave her apartment for three hours one day a week. Yet, in addition to being banned from receiving social assistance for life, she was ordered to repay both the overpayment and the loan, together totalling $62,000, despite having absolutely no source of income or any opportunity to obtain work during her sentence. Faced with an impossible situation, Kim Rogers launched a constitutional challenge of the Regulations under the Ontario Works Act, S. O. 1997 c. 25, Schedule B, as amended (" Regulations"). She took the position that the Regulations violated her rights contained in the Canadian Charter of Rights and Freedoms and were ultra vires the Lieutenant-Governor in Council of the Province of Ontario. Essentially, it was to be argued that the lifetime ban constituted cruel and unusual treatment or punishment contrary to s. 12 of the Charter. In addition, it would be argued that Rogers was denied her s. 15 Charter right to equal treatment before the law and denied her s. 7 Charter right to life, liberty and security of the person, as her sentence was not administered in accordance with the principles of fundamental justice. In a decision rendered May 31, 2001 by Epstein J., in Rogers v. Ontario (Works, Administrator for the City of Greater Sudbury) [2001] O. J. No. 2167, the Court granted an interlocutory injunction allowing Rogers to receive social assistance pending a full hearing of the constitutional challenge, with retroactive payments. The full hearing was set to be heard in Toronto in September, 2001. Epstein J., noted as fact that Rogers had no personal savings, was estranged from her family and the father of her child, and was unable to access help from many charitable organizations. The Court stated that in these unique circumstances Rogers was in peril of becoming homeless and deprived of basic sustenance and that ... such a situation would jeopardize the health of Ms. Rogers and the fetus thereby adversely affecting not only mother and child but also the public - its dignity, its human rights commitments and its health care resources. For many reasons, there is overwhelming public interest in protecting a pregnant woman in our community from becoming destitute. However, even after the reinstatement, she was only entitled to receive $520 a month from Ontario Works. This amount was clawed back to $468, as the overpayment was levied. Her rent was $450. It was impossible for her to afford or obtain sufficient or proper food. Before her death she was literally a prisoner in her small apartment, waiting through a heatwave for her sentence to end, hungry and understandably anxious for her unborn child, yet still anticipating the hearing of her constitutional challenge. Kim Pate, Executive Director of the Canadian Association of Elizabeth Fry Societies (CAEFS) in an e-mail to the Par-L listserve after Kim Roger's death, stated that: The institutional contradictions arise from the central issue that we are dealing with the creation of an underclass, subject to increased state control and too frequently the consequent criminalization of the most marginalized, particularly poor, racialized and psychiatrized — and women disproportionately so.... Many of us know that the decision to prosecute for "welfare fraud" is a relatively recent government policy. In the past, such instances were more likely to be referred to as "over-payment" and repayment schemes would be implemented. Technically, the government always had the option to pursue criminal charges, but the practice was to not do so. Indeed, in some cases, as in situations where it was determined that the individual made a genuine mistake or a social worker determined that the individual had been intending to improve his/her situation (ie. pursuing an education or other training), portions of the so-called over-payments might be "forgiven." Kim Roger's case starkly highlights the terrible consequences when poor and disabled women's Charter rights are effectively breached by the operation and application of harsh legislation and policy, as other provincial governments (most recently Nova Scotia) are considering implementing policy and regulatory provisions on social assistance similar to Ontario's. Sources: MacKinnon, M. and Lacey, K., "Bleak House", The Globe and Mail, Saturday, August 18, 2001, F1; Kim Pate, e-mail on Par-L listserve; Rogers v. Ontario (Works, Administrator for the City of Greater Sudbury) [2001] O. J. No. 2167 |
|
Return to top Reproduction of articles from this site is permitted, provided that the source is cited. |
The Women's Economic Equality ProjectBy Leilani Farha and Shelagh DayWomen of all ages experience gender inequality within and outside the home. Women are denied access to basic healthcare, housing, education, and work. Even when they are employed, women's wages in industrialized countries are only 60-75% of wages of men. In today's global economy, gender inequality is increasing, as evidenced by the increasing poverty of women, and the re-emergence of sweatshops and other forms of economic exploitation, including trafficking in women. It was in response to this reality that the Women's Economic Equality Project (WEEP) was established in early 2000.WEEP is a joint initiative of the National Association of Women and the Law (NAWL, Ottawa), the Centre for Equality Rights in Accommodation (CERA, Toronto) and the Centre for Economic and Social Rights (CESR, New York). The goal of WEEP is to improve understanding, recognition and implementation of women's right to equality, as a right that encompasses economic, social and cultural rights as well as civil and political rights, and to introduce a gender perspective to economic and social rights. WEEP commenced its activities in December 2000 in Capetown, South Africa where we hosted a Consultation involving 30 women activists, researchers and academics from around the world with experience and expertise in the area of economic and social rights. Consultation participants spent three days discussing conceptions of women's equality, the impact of globalization on women, how specific economic and social rights could be engendered, and strategies for enforcing women's equality with respect to economic and social rights. WEEP commissioned a number of background papers for the Consultation and it is hoped that some of these will be published in an upcoming volume of the Canadian Journal of Women and the Law. WEEP has also been actively involved in lobbying the United Nations Committee on Economic, Social and Cultural Rights (" the Committee) 1 to adopt a General Comment 2 on women in the International Covenant on Economic, Social and Cultural Rights (ICESCR). To this end, WEEP attended the 25th Session of the Committee in Geneva (May 2001) where we made an oral presentation to the Committee regarding women's inequality with respect to economic and social rights, urging Committee members to take seriously the adoption of a General Comment. Together with the South African Consultation participants and a number of Canadian feminist academics, WEEP has prepared a draft General Comment that we will submit to the Committee once it has been further commented upon by women advocates in Latin America, Asia and Europe. We hope to undertake these consultations over the course of the next year. In the meantime, WEEP representatives will return to Geneva in August 2001 to present the proceedings from the South Africa Consultation to the Committee, to further discuss the adoption of the General Comment with Committee members, and to participate in a day-long meeting on women's economic, social and cultural rights. If you have any questions about WEEP and our various activities please contact:
Shelagh Day: sheday@interchange.ubc.ca Leilani Farha is the Women's Programme Coordinator and Staff Lawyer at CERA — the Centre for Equality Rights in Accommodation. For the past six years her work has focused on advocacy, research and publications related to women's housing, land and property rights at the international level. Shelagh Day is a human rights advocate in Vancouver, President and Senior Editor of the Canadian Human Rights Reporter, who has been active in taking women's equality claims to the United Nations and other international fora. Shelagh is a Human Rights Advisor to NAWL. 1 The Committee is responsible for monitoring State Party compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR). Canada ratified the ICESCR and thus is a state party to it. Canada was reviewed by the Committee in November 1998 and the Committee's Concluding Observations on Canada can be found at: www.unhchr.ch. 2 General Comments are legal interpretations of rights contained within treaties. The Committee on Economic, Social and Cultural Rights has yet to adopt a General Comment related to women. |
|
Return to top Reproduction of articles from this site is permitted, provided that the source is cited. |
Some Reflections on an International Experience — A Report from the CHRF International Human Rights Training ProgramBy Ros SalvadorINTRODUCTIONThis summer I represented NAWL at the Canadian Human Rights Foundation's (CHRF) 22nd annual International Human Rights Training Program (IHRTP) in Ste-Anne-de-Bellevue, just outside of Montreal. (See the CHRF's website at http://www.chrf.ca/english/general/files/master_eng.htm) For three weeks, 120 human rights advocates from over 60 different countries stayed in the residences of John Abbott College and participated in the training program. The training was probably the most intense three weeks of my life — jam-packed with experiences and friends I will be learning from for a lifetime. Coming from Victoria, BC, where, as a black woman, I am highly conspicuous, one of my first sentiments at the training was feeling at home in a multi-cultural, multi-coloured setting. I initially felt a sense kinship with the African participants because there are some cultural similarities between Africa and Trinidad where half of my family is from. However, a rift quickly developed because the training program was also my first immersion in a situation where homophobia was so widespread. THE HOMOPHOBIA... was shocking. Homophobia is everywhere and I expected to find it here too, but facing the extent and depth of the deep-seated hatred of gays and lesbians among human rights activists was very painful. Aside from numerous derogatory comments about the morality of gay people, and what is or is not natural, there are a couple of incidents that I would identify as low points. One man stood up at the microphone in the agora (auditorium) and stated that he didn't think that gays and lesbians should be allowed to publish because this could contribute to a decline in reproduction. The statement itself was not nearly as discouraging as the fact that it was met with applause from about half of the 100 people in the room. As terrified as I am of speaking in public, I am, on occasion, so moved by anger or desperation to be motivated to such displays. This was one of those occasions. However, I was about fifth in line at the microphone (behind people, most of them men, who had already taken the opportunity to monopolize airtime on several previous occasions). I was not given the opportunity to speak. I finally did have my say toward the end of the course when I lead a workshop during "open-space" time on "Violence and Hatred of Gays, Lesbians and Bisexuals." About fifteen people attended. Some were clearly supportive, others were quiet, but the environment overall was very positive. We began by discussing various forms of hatred and violence that have been "justified" throughout history on the basis of morality or religion. Ironically, while I was in Montreal, Amnesty International had produced a report on Torture and Ill-Treatment Based on Sexual Identity (online at http://web.amnesty.org/ai.nsf/Index/ACT400162001. My workshop included case studies on some the scenarios presented in the report, and then moved into open discussion around sexual orientation. All questions were posed respectfully and gave me the opportunity to dispel some myths and misunderstandings and to learn about manifestations of homophobia in various countries. A parallel workshop addressing sexual orientation was run by a (straight) man from Africa. Later, when posters went up in the agora reporting back on the experiences in each group, someone had written on his poster: "Are sexually disoriented people human beings?" Aside from these impromptu sessions, discussions about sexual orientation and transgender issues were totally absent from the curriculum although it was painfully evident that conversation around these issues was necessary. The Amnesty Report clearly indicates that homophobia is a global problem and my experiences show that many human rights workers themselves are extremely homophobic. On a more positive note, as a result of awareness raising coming out of my experiences at the training, a fellow-participant from the Czech Republic has decided to implement sexual orientation as part of the anti-hate training modules in Czech schools. THE PEOPLEFortunately, my positive experiences were even more powerful than the negative ones. I met many wonderful people — women and men who regularly risk their lives just by doing human rights work. There were many people for whom the issue of sexual orientation was new and whose commitment to human rights allowed them to challenge themselves and to learn. As for myself, my impatience and frustration with homophobia, and unwillingness to understand the context in which it developed, has made me realize how much internal work I need to do. I went to Montreal partly because I am tired of writing academic papers and feeling like I am only writing about change instead of making it. I wanted to learn how to expand my human rights work and share resources. But by the end of the course, I was so frustrated, isolated, worn down, and angry that on some days, I questioned why should I help people who would not help me — who would let me be imprisoned, tortured, killed, or at the very least, banned from writing in their countries because I am a lesbian. Fortunately, there were people there who helped me move beyond this. One person in particular, M, taught about the strength of the human spirit, and human capacity for change. After I came out to my class (of 15 people), M said that he used to hate gays and lesbians, but during his time in prison, and after his release, several gay men supported and helped him, and eventually became good friends. M attended the Gay Pride Parade in Ottawa this year to show his solidarity. My new friends taught me about the power of positive action to effect change and also the value of small gestures of kindness, friendship, and generosity, which, though they may seem small or insignificant, can provide immense encouragement or even change someone's life. And it can be something as simple as knocking "hello" in the night on the walls that separate your rooms. Burma has been under military rule since 1988. M joined the Burmese military when he was seventeen. Ten years later, he refused to shoot at civilians and encouraged soldiers to join the peaceful pro-democracy movement. As a result, he spent nine years in prison, the last two of which were spent in solitary confinement. When M was released from prison three years ago, he fled to Thailand where he lived illegally (Thailand does not accept refugees). M risked his life to come to Canada to attend the training and raise awareness about Burma, knowing that if he was identified on his return by the Thai police, he could be deported to Burma and imprisoned and/or killed because of his political activity. A fellow activist friend of M's died in prison while M was is Canada.1 I also met a man from Ghana who works for Timari-Tama Rural Women — a national NGO that is dedicated to advocacy and consciousness raising around the rights of women and girls, as well as health issues. My friend's focus is on elderly women who have been accused of witchcraft as a result of the diseases or misfortunes of their family members. These women are been banished from their villages and either die or live in "witches'" camps where they endure deplorable conditions, facing problems with water, food, clothing and ill-health. I agreed to initiate some clothing and fundraising drives in Canada to assist.2 Timari-Tama has agreed to write an article for an upcoming issue of Jurisfemme. Donations may similarly be made to La fondation pour le developpement intégré et démocratique in Haiti (FONDIDH). FONDIDH works toward socio-economic development and the promotion of democratic principles, and also runs education sessions. FONDIDH offers legal assistance to victims of human rights violations without discrimination based on race, colour, religion, or political affiliation. The woman I met who works for this organization explained that it has so few resources that they have not been able to purchase a computer and have difficulty arranging appropriate travel to rural areas. Many of the people served by FONDIDH live in conditions of extreme poverty. Because FONDIDH is able to hire so few employees, the people who do work there contribute enormous amounts of volunteer time to the organization. During my time in Montreal, I also learned a great deal about global issues, including trafficking in women and children. I also began to understand on an emotional level what it means for a country to be under military rule. A friend from Pakistan watched his country be taken over by the military while he was in Montreal. He was afraid for his family and friends, and had a difficult time trying to find out what was happening because the military takeover in Pakistan was barely news in Canada. Meeting all of these people reminded me how to communicate from the heart, how to value people, how to value my own small contributions, and reminded me that real social change means caring enough to send food and clothing to countries in need. THE CURRICULUMThrough the training, I learned quite a bit about the United Nations and gained familiarity with international instruments. The facilitators were hired on contract and the facilitator of my small group was fantastic. However, the curriculum, newly developed this year by the CHRF, was disappointing, as was the philosophy that appeared to underlie it, and the way in which sexual harassment, cultural differences, racism, the need for accommodation, and homophobia were handled. Fortunately, by the end of the course, the CHRF agreed that sexual orientation issues would be included in next year's curriculum. In addition, throughout the training, the CHRF requested tremendous amounts of written feedback to improve upon the mode for next year. I hope next year's curriculum will challenge everyone to learn about and question themselves — to challenge their views, and to share their cultures. I also hope that next year, the "training program" will be a conference and that members of the CHRF will learn from the participants to understand and challenge racism, sexism, and homophobia. CONCLUSIONBy graduation time, I was so emotionally exhausted, withdrawn, and disappointed that I didn't attend the graduation ceremony. This is not unusual for me — I have received three university degrees in the mail and tossed them into the filing cabinet without a second thought. Later, M told me that the graduation was one of the best moments in his life — he had never dreamed of attending university, and there he was, staying at a university residence and receiving a diploma. I wish I had been there to share that and that I had not taken it for granted. M said that the time he spent in Montreal was the best time of his life. In the last few years of law school, government work, and living in (white) Victoria I have learned so well to hide myself that most of whom I am has curled up into a pit in the middle of my stomach and were it not for the pain in my gut, I would wonder whether I was even there at all. My time in Montreal reminded me about what is important in my life and the type of human rights work I need to do. I am grateful to the CHRF for the opportunity to attend the training and I hope that it will continue to offer the program, perhaps in consultation with queer, feminist, and anti-racist organizations, and organizations representing people with disabilities and Aboriginal people. The course was a spiritual, emotional, and intellectual journey. I faced the challenge of not allowing hatred to breed hatred or indifference, learned the ease with which intolerance of homophobia and harassment flows into racism, and that the biggest mistake we can make as human rights workers is to think that we are immune from being the very thing that we are fighting against. 1 For more information on the situation in Burma, please contact the Assistance Association for Political Prisoners (Burma) at aappb@cscoms.com. AAPP needs both political and financial support. See also the Canadian Friends of Burma website at http://www.cfob.org 2 If you are interested in assisting or making a donation, please contact me at ros@uvic.ca or send a donation cheque (payable to the University of Victoria Chapter of the National Association of Women and the Law) to Ros Salvador, UVic NAWL, c/o Faculty of Law, University of Victoria, PO Box 2400, Station CSC, Victoria, BC, V8W 3H7. Please indicate that the cheque is for Timari-Tama. Ros Salvador is a third year law student in Victoria, B. C. and is on the NAWL Steering Committee. |
|
Return to top Reproduction of articles from this site is permitted, provided that the source is cited. |
Thoughts On The World Conference Against RacismBy Catherine MeadeI had the honour of representing NAWL at the UN World Conference Against Racism, Xenophobia, and Related Intolerance (WCAR) in Durban, South Africa recently. My memories are a collage of bodyguard-flanked dignitaries, trumpeting elephants, begging toddlers, red carpets, shanty towns, giraffes, protest marches, grazing rhinos, meetings and street vendors. Having returned from the conference less than a week ago, what follows are more first thoughts than reflections regarding the NGO Forum, the Conference, and South Africa. THE NGO FORUMThe NGO Forum began with much promise. The Opening Ceremonies offered both spectacle and substance. The high point of the Ceremonies was the address by South Africa's President, Thabo Mbeki, who delivered his speech against a backdrop of the yin-yang conference logo and a huge bronzed skeletal globe, and amidst a sea of Zulu dancers who had remained on stage following their performances. President Mbeki's address was the most insightful speech I have heard from a Head of State. To thunderous applause he noted, as has been said, "as long as the lions do not have their own historians, so long will the hunters emerge as heroic, mighty, and right." He then brought a gender and race analysis to those words, as he did throughout his address. He concluded his address by stating his conviction that, "we who are gathered here stand at an extraordinary moment in historic time when it is possible to break through the sound barrier that has, for centuries, defined some as superior and others inferior, simply on the basis of race and colour... Time is out of joint. You (as delegates) have the duty and possibility to set it right." Sadly, the Opening Ceremonies proved to be one of the few bright spots in the NGO Forum for me. The lowest point was the blatant anti-Semitism. When Jewish groups met to review the draft NGO Declaration, Palestinian groups shouted throughout their session. Reportedly, at the daily anti-Israeli marches, one NGO delegate held a placard stating Hitler Should Have Finished the Job! Even more dismaying was that the NGO Forum singled-out the Jewish Caucus by censoring a paragraph proposed by them while adopting EVERY other paragraph proposed by EVERY other group, including several highly inflammatory paragraph s submitted by pro-Palestinian groups. In the end, 5 international NGOs, including Amnesty International, denounced the NGO Declaration. More importantly, because of the myopic inclusion of those paragraphs, Mary Robinson, UN High Commissioner on Human Rights was only able to accept the NGO Declaration; she could not commend it to the Official Conference. In effect, the irresponsible actions of those who participated in the adoption process rendered the hard work by many, many others to be in vain. THE OFFICIAL WORLD CONFERENCE AGAINST RACISM (WCAR)Only 750 of the thousands of NGO delegates were able to attend the sessions (passes were distributed daily on a first-come, first-serve basis). Hence, it is somewhat difficult to evaluate the WCAR, as I felt very removed from it. Still, I have reflected somewhat on the USA's actions and the WCAR process overall. I have a few thoughts regarding the pull-out of the United States. First, it was nonsensical. Simple logic alone dictates that if they truly cared about anti-Israeli rhetoric appearing in the final Declaration, they would have stayed to fight to ensure that it would not appear. Never in my life have I seen the USA back away from a fight. I cannot help but feel that they constructed a pseudo-high road to exit the conference so they would not have be a party to a UN document that raises the issue of reparations for the Trans-Atlantic slave trade. Second, I believe the pull-out severely hampered Canada's position. Following the US departure, the fate of the conference lay in Canada's hands. As a result, Canada was relegated to the role of mollifier rather than world changer. Canada fell dramatically in the eyes of NGO's world-wide because of the compromising positions it took. Finally, I am forced to admit that the USA's bad behaviour both before and during the conference raised the profile of the WCAR to a level that it would not otherwise have achieved. Given all of the different positions that each of the 170+ countries arrived in Durban with, it is quite amazing that anything was accomplished at all. In the same forum where Brazil proposed the addition of a paragraph acknowledging that sexual orientation-based discrimination can exacerbate experiences of racism, Iran issued a thinly veiled threat that there would be blood on the floor before the Declaration would make reference to sexual orientation. Hence, the wishy-washy nature of the Declaration is understandable — not acceptable, but understandable. SOUTH AFRICASouth Africa is a truly beautiful country. I met many wonderful South Africans, both Zulu and Xhosa. Like many who had been involved in the Anti-Apartheid movement, when Nelson Mandela was elected as President, I moved South Africa to the back of my mind — pleased with the job well done. As I saw the miles of shacks in the townships and witnessed first-hand the abject poverty in which millions of Black South Africans live, I came to the realization that the hard work in South Africa is just beginning. PARTING THOUGHTSOverall, despite the disappointments and frustrations that were very much a part of the NGO Forum and the WCAR, I would never trade my experiences. I was extremely privileged to have been a part of the process, both in Geneva and in Durban. Ultimately, I was in South Africa at a time when leaders and representatives from 170+ countries were focussed on racism — it doesn't get much better than that! Catherine Meade sits on the NAWL Steering Committee. |
|
Return to top Reproduction of articles from this site is permitted, provided that the source is cited. |
JURISFEMMEVolume 20, No 4 Spring/Summer 2001 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
Publication Co-ordinator Claire Tremblay NAWL Staff and National Steering Committee National Steering Committee Regional Representatives |
