Sunday, May 16, 2010

Criminal Injuries Compensation Board: A Call to Action

As many of you will know, victims of crime (including women who have experienced male violence) can apply to the Criminal Injuries Compensation Board for financial compensation. The Compensation for Victims of Crime Act, section 9(1)(c) requires the Board to notify offenders of upcoming hearings, where practicable (emphasis mine). Once notified, an offender has the right to attend the hearing, cross-examine the applicant and have access to her file.

Until recently, the Board has taken a fairly relaxed approach to this requirement, treating it largely as discretionary. It used to waive notification in cases involving sexual assault, partner abuse and childhood abuse, even if the offender had not been convicted.

The Board has changed this practice and is now interpreting the notification requirement strictly; insisting on notifying offenders in all cases where there has not been a conviction.

This leaves women in a very difficult position. To proceed with an application now means there is a very real possibility (perhaps even a likelihood) that their abuser will be present at the hearing, able to cross-examine them and review the file.

The University of Ottawa Community Legal Clinic is fighting back against this change in practice and has notified the Board that it intends to challenge the constitutionality of the legislation. The Board has responded by suggesting that a policy be developed to address how notification is handled.

The Clinic has been asked to participate in this process, and there may be stakeholder consultations. A recent Memo from the Clinic Director, Louise Toone, from which the above information is drawn, encourages interested parties to make submissions to the Board, either by sending comments to the Clinic or directly to the Board.

This is a very important women’s equality and access to justice issue. I strongly urge any of you who can to support the stand being taken by the University of Ottawa Clinic and to make a submission. You can argue that a women’s equality approach to victim compensation requires that women be protected from ongoing contact with their abusers and that women have a right to privacy of their files and records, as is set out in the Criminal Code with respect to personal records in sexual assault criminal cases.

Here is the contact information:

Megan Throop
University of Ottawa Community Legal Clinic
17 Copernicus Street
Ottawa, Ontario K1N 6N5
Fax: 613-562-5602
Email: mthro091@uottawa.ca

Criminal Injuries Compensation Board
439 University Ave, 4th floor
Toronto, Ontario M5G 1Y8
Fax: 416-326-2883

Sunday, May 9, 2010

Arise then . . . women of this day!

(Mothers Day Proclamation 1870)

Many of us who are mothers can remember lying in bed (as we had been sternly instructed to do the night before) on Mothers Day morning, listening fondly to the not-so-quiet kitchen sounds of breakfast in bed preparations (“Sshh! Don’t wake her up!”), even as we knew we would be greeted later with a sticky mess to clean up. We can also remember the bouquets of tissue paper flowers and the hand drawn and printed poems about what great mothers we were.

It is a long time since my children were young enough to present me with such offerings and, in the years since, I have become a Mother’s Day cynic, seeing it as little more than a crassly commercialized exploitation of what are, at heart, sincere human emotions. Indeed, according to the National Retail Federation, Mother’s Day has become a $15 billion industry in the US alone, as money is spent on such items as restaurant meals, spa visits, flowers and cards so people can convince themselves that they care about their mothers.

I was delighted to have my cynicism about Mother’s Day shaken last year, when I received a fundraising appeal from Inter Pares, a fantastic Canadian social justice organization (www.interpares.ca), that encouraged us to take back Mothers Day from the card manufacturers and florists by donating to IP’s work in the names of our mothers. I did, and have done so again this year.

Mothers Day, in fact, has revolutionary roots. It was inspired by Ann Marie Reeves Jarvis who, in 1858, organized women into clubs to improve the health and sanitation conditions in their community. Following the end of the Civil War, she called for the first Mothers Friendship Day to reconcile communities that had been torn apart by the war.

A few years later, in 1870, Boston suffragist Julia Ward Howe issued a Mothers Day Proclamation for women around the world to unite to end war.

Until 1914, when it became a national holiday in the United States, Mothers Day was celebrated in a non-commercial way, focusing on the role of women in working for peace, in Canada, Mexico and much of the U.S.

When it became a national American holiday, an apostrophe was added, turning what had been a collective event into “Mother’s Day,” a tribute to the individual mother and her work in the home. And it has been downhill ever since, with the gift and card industries the only winners.

What does Mothers Day 2010 bring with it?

Ironically, it is the 50th anniversary of the birth control pill, surely a double-edged sword for women’s freedom and autonomy if ever there was one. There can be no doubt that the availability of the pill was and continues to be liberating for many women. However, it allowed men to dismiss any sense of responsibility for their sexual activity even to the point that they could rape women without worrying about a resulting pregnancy. And, the pill has had negative health side effects for some women and is not financially accessible to all. Without meaningful access to abortion services for all women, the pill is only one part of liberating women from unwanted pregnancy.

Mothers Day this year sees more and more women’s equality organizations in this country being defunded by the federal government, even as that government funds Ontario Golf Magazine, a spinach-based cosmetics company, Chakam School of the Bible, Wycliffe Bible Translators and other such enterprises.

We can also reflect this year on the government’s continued moves to end the long gun registry, despite the clear evidence of the role of guns in the murders of women.

Quebec’s government is poised to pass Bill 94, a move that will further isolate and take away the possibility of autonomy from some of the most vulnerable women in that province.

It is not just domestic policies that should give us cause to pause on Mothers Day 2010. Stephen Harper’s G8 maternal/child health package specifically excludes funding for reproductive health care that includes safe abortion services for women outside Canada.

The response from Conservative Senator and self-proclaimed feminist Nancy Ruth to the outcry against this outrageous policy from Canadian women’s groups? “Shut the fuck up!”

Or what? Well, apparently, risk losing funding ourselves. Of course, this threat applies to an ever smaller group of women’s equality organizations that still receive federal funding.

It would be easy to feel nothing but discouragement this Mothers Day. That’s why it has taken me until early evening to feel enough hopefulness to sit down and write something today.

What brought me out of my all-consuming gloom was listening to the CBC radio interview with Ursula Franklin from last week. I encourage any of you who have not heard it to find it on The Current website and have a listen.

As she talked articulately and with passion about the loss of democracy in Canada and compared it to the rise of fascism in Europe in the 1930s, she also talked about peace and women’s work to create peace around the globe. In her words: “Peace is not just the absence of war. It is the presence of social justice and the absence of fear.”

An honourable thought and aspiration for Mothers Day 2010.

Sunday, April 18, 2010

Rewriting Bill C-510

Conservative backbencher and chair of the Parliamentary all-party “pro-life” caucus Rod Bruinooge recently introduced a Bill to penalize those who “coerce” women into having an abortion.

Despite his position with the “pro-life” caucus, Bruinooge maintains that he is not trying to make abortion illegal; he just wants to protect women from being forced to have abortions against their will.

Those of us who are pro-choice are, by definition, committed to the principle that women make reproductive choices freely and with autonomy. Indeed, that is why we call ourselves pro-choice. We are concerned about women who are threatened or intimidated into making any decision related to their reproductive capacity.

Bruinooge has said he created this bill because of a case in his riding in which a young woman, Roxanne Fernando, was killed by her boyfriend, allegedly after he told her to have an abortion and she refused.

This is a tragic tale, indeed, but really is no different from any other femicide or violence against women story. Men kill, beat, strangle and otherwise physically assault their female partners and former partners when those women leave them, make their own decisions, do not make dinner on time, do not dress as directed to – in short, when they do not do as they have been told.

Men also threaten and harass their partners and former partners for all the same reasons.

Laws against all these kinds of behaviours already exist. Roxanne Fernando’s former partner, Nathanael Plourde, is serving a life sentence with no possibility of parole for 25 years for his involvement in her murder.

We could, and do, argue that these laws are not always appropriately enforced and that courts do not always take violence against women related charges seriously enough. But we do not need a law about coercion with respect to abortion to ensure that women are safe from men’s violence.

What we might need, if we need more laws at all, is a law that prevents people from coercing women not to have abortions. Think about the possibilities if Mr. Bruinooge’s bill were just modestly revised as follows (my changes are noted in boldface type, and I include only selected sections of the Bill):

Whereas many pregnant women have been coerced not to have an abortion and have suffered grievous physical, emotional and psychological harm as a result;

Whereas the Supreme Court of Canada recognized in Tremblay v Daigle [1989] 2 S.C.R. 530 that: “No court in Quebec or elsewhere has ever accepted the argument that a father’s interest in a foetus which he helped create could support a right to veto a woman’s decisions in respect of the foetus she is carrying;”

And whereas Parliament wishes to ensure that women are able to continue to make autonomous decisions with respect to their reproductive capacity:

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. This Act may be cited as An Act to Prevent Coercion of Pregnant Women Not to Abort.

2. The Criminal Code is amended by adding the following after section 264.1:

264.2 (1) Every one who coerces a female person not to procure or attempt to procure an abortion for herself is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

(2) Everyone who attempts to coerce a female person not to procure an abortion for herself is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding six months.

(3) The following definitions apply in this section:
“abortion” means the act of using or prescribing any instrument, medicine, drug or any other substance, device or means with the intent to terminate the clinically diagnosable pregnancy of a female person. (Remainder of this definition removed.)

“coercion,” in respect of an abortion, means conduct that, directly or indirectly, causes a female person to reject the possibility of an abortion to which she might otherwise have consented. A person coerces a woman not to have an abortion if he or she knows of or suspects the pregnancy of a female person and engages, or conspires with another to engage in, conduct that is intentionally and purposely aimed at directing the female person who is considering having an abortion not to have an abortion, including but not limited to the following conduct:
(a) committing, attempting to commit, or threatening to commit physical harm to the female person, a child or another person;
(b) committing, attempting to commit or threatening to commit any act prohibited by any provincial or federal law;
(c) denying or removing or making a threat to remove financial support or housing from a person who is financially depending on the person engaging in the conduct;
(d) attempting to compel by the use of religious or moral pressure or intimidation, and
(e) attempting to compel by pressure or intimidation including argumentative and rancorous badgering or importunity; . . .

“course of conduct,” for the purposes of the definition “threat” means a pattern of conduct that consists of a series of two or more separate acts evidencing a continuity of purpose.

“threat,” for the purposes of paragraph (c) of the definition “coercion” means one or more statements or a course of conduct by an individual that would cause a reasonable person to believe that the individual is likely to act in accordance with the statements or as implied by the course of conduct . . .

Surely, this is the kind of Bill that is more needed than yet another back door attempt by the Conservatives to reopen the abortion debate.

Wednesday, March 24, 2010

Talking with boys

The Globe and Mail of Monday March 23th contains an important column by Anthony Wolf in its Life section. Unfortunately, this article does not seem to appear online, so let me tell you a bit about it. Maybe it is not too late for you to track down a copy of the paper and read the full article.

Wolf is a clinical psychologist who is worried about boys abusing their girlfriends and wants parents to talk to them about this. He makes the point that, while most teenage boys are not abusive, many are. He writes:

“How can you know whether your teenage son is abusive, or potentially abusive with women? You can’t. That’s why it’s important for you to talk outright with your son. . .”

Wolf’s essential argument is that even though most boys are not abusive, many “really do not know which behaviours are acceptable and which are completely unacceptable. Nor do they connect these behaviours with the word abuse, which they should.”

He provides a sample script for parents who are unsure how to chart these waters, and it is good. It contains non-judgmental language like: “I’m not saying that I think you will or that you do [abuse girls],” which creates the opportunity for an open conversation minus the defensiveness that so many teenagers display whenever parents try to talk to them about anything.

And he does not just talk about physical violence; he takes on possessive and controlling behaviour too: “They [abusive boys] constantly want to know where their girlfriend is. Usually they do this by calling or texting many times during the day or night. They don’t want their girlfriend to hang out with friends on their own. . . They give them orders as to what they should wear. They subject girls to verbal put-downs.”

He also makes it clear that no behaviour on the part of the girl, no matter how “aggravating and nasty” it might be, excuses abuse by the boy. “No matter what they do to you, women never deserve to be abused. What you can do instead is leave or end the relationship.”

Hats off to Anthony Wolf for reminding parents of their responsibility to ensure that their sons hear these important messages.

Tuesday, March 9, 2010

International Women's Week 2010: Just how far have we come?

International Women’s Week began on a high note for me when I turned on CBC radio on March 7th to listen to Sunday Morning. The show began with Parachute Club’s “Rise Up,” surely a song to inspire hope if there ever was one.

Then, it was three hours of stories about amazing women:
 The 1969 Abortion Caravan: a documentary that every high school student should hear so they can be inspired by the courage and determination of the women who made reproductive choice a possibility in this country
 Haleh Esfandiari: an Iranian American woman who was an early feminist pioneer under the Shah and who was imprisoned in 2006 when she returned to Iran to visit her elderly mother
 Nellie McClung: as told by her youngest granddaughter
 The Miss G Project: bringing gender studies courses to Ontario high schools
 The Voice of Women: women’s peace activism, 1960s style
 Judy Collins’ haunting rendition of “Bread and Roses”
 The Sisterhood: grade 8 girls in a Toronto school creating their own space for sharing stories, getting and giving support and having a good time

What a great way to start the week, I thought. Perhaps the whole week will be this good!

Well, it is only Tuesday evening, but the euphoria I felt after listening to Sunday morning has long since faded.

Why? Here are a few reasons.

i. Margaret Wente and her March 4th attack on “Reality Check: Women in Canada and the Beijing Declaration and Platform for Action Fifteen Years On,” the Canadian Feminist Alliance for International Action (FAFIA) and Canadian Labour Congress coordinated report to the United Nations Commission on the Status of Women.

The superficiality of her smooth dismissal of the wage gap is staggering. To claim that women earn less than men because men work more hours than women and women prefer jobs in the public sector, without examining the gender-based reasons for this, is too offensive for words. I have some nonetheless.

Do you think that perhaps the lack of flexible child care has an impact on how many hours mothers can work?

How about the fact that, according to data gathered in the 2005 General Social Survey, working women spend 4.3 hours per day compared to men’s 2.5 on unpaid housework and child care? Or that women miss more time from work than men because of family responsibilities? In an average week in 2004, 5% of women and only 2% of men missed work time due to family responsibilities. Overall that year, women missed 10 days of work and men just 1.5 to take care of family responsibilities.

These statistics come from the federal government’s 2005 General Social Survey, which can hardly be dismissed as “the usual labour-feminist rhetorical stew, flavoured with a heaping cup of statistical abuse,” as Wente describes the FAFIA/CLC report.

ii. Canada’s Minister Responsible for the Status of Women, Helena Guergis, and her comments at the United Nations Commission on the Status of Women. While claiming that her government is committed to helping the victims of domestic violence, she made no mention of the present move to remove gun control legislation. She spoke proudly of the fact that women make up more than 50 percent of the paid workforce in Canada, but said nothing about how many of us work part time or about the wage gap between women and men.

iii. The recognition by the United Nations during the Status of Women Commission that: "Progress towards gender equality has been uneven and slow.”

iv. A sexual assault case currently awaiting decision by the Ontario Court of Appeal on the issue of consent. The facts of the case are admittedly unusual. A woman was asleep in the bed of a man with whom she had had sex in the past. While she was asleep, his identical twin brother got into the bed with her. The man claims the woman consented to the sexual activity that followed. She says there was no consent because she believed him to be his twin brother. The man was convicted by the trial court, but has appealed his conviction, claiming he asked her: “Are you sure?” and she, “by her conduct, not by her words, consented.”

It can only be hoped that the Court of Appeal will dismiss this appeal, but it is troubling that it is even being heard. Surely there can be no question that consent includes an understanding of who we are agreeing to be sexual with. Surely, waking someone up to ask “Are you sure?” when you are in someone else’s bed, someone to whom you happen to look identical, is not sufficient to meet the legal standard for consent. Surely, this woman should not have to continue to relive this experience 4 years after the sexual assault took place.

v. Canadians Nathalie Morin and Nazia Quazi: Nathalie and her three children have been trapped in Saudi Arabia since 2005 and Nazia since 2007 for no reason other than that they are women in a country where any movement by a woman must be consented to by a male guardian. In Nathalie’s case, it is her abusive husband; in Nazia’s, her abusive father, who will not provide consent for them to leave the country.

The Canadian government has declined to become involved in either case. Foreign Affairs Minister Lawrence Cannon’s press secretary has said, of Nathalie’s plight: “When Canadians leave Canadian territory, they are subject to the laws and conventions governing the country where they are.” The government has also said that it cannot involve itself in what is “essentially a domestic dispute” that must be resolved in a way that is “consistent with Saudi laws and regulations” and that Nathalie and her spouse must reach “a consensus on the issue of custody.”

This list (which is a pretty random gathering of news stories – there were lots more I did not include, and each of you readers could add your own) makes it hard to feel very celebratory about International Women’s Week.

Let me end with two more positive thoughts.

First, from Full Frontal Feminism: A Young Woman’s Guide to Why Feminism Matters, by Jessica Valenti:

“(f)eminism is a pretty amazing thing. When you’re a feminist, day-to-day life is better. You make better decisions. You have better sex. You understand the struggles you’re up against and how to best handle them.”

Second, from the mouth of the 5-year-old son of a feminist friend, who asked him why he thought we had IWD: “It’s Women’s Day because they do all the stuff for us.”

Perhaps there is some hope, after all.

Saturday, February 13, 2010

Where have the women gone?

Like many other Canadians, I have been riveted to ongoing media coverage of the murders of Marie France Comeau and Jessica Lloyd, the sexual assaults of two other women in Eastern Ontario and the charges laid against Russell Williams.

Perhaps because my political activism also includes work to end the Canadian military presence in Afghanistan, the fact of Williams’ high rank in the Canadian Air Force makes the story all the more compelling.

I am deeply disturbed by the way in which these women and, more generally, the issue of violence against women, which should be at the centre of media attention, have all but disappeared.

Television, radio and print media are providing detailed reports about the impact this arrest has had on the morale of Canada’s soldiers. We have read, heard and watched General Walter Natynczyk, Chief of the Defence Staff, tell the troops to “stand proud” despite the allegations facing Williams. We have heard allegations that one soldier may have been spit upon and that others may have received a less than warm welcome in the Trenton community. We have been told that Natynczyk ventured into a Tim Horton’s coffee shop wearing his uniform and was treated with respect by other customers.

We have, as we always do in cases of femicide, heard stories from Williams’ colleagues about what a wonderful man and soldier he is and how shocked they are to hear of his arrest.

We have even heard about Williams’ kindness to frogs, which he apparently always carefully removes from his lawn before mowing the grass – the lawn of his home near Tweed, which appears to be a repository for at least some of the evidence that may link him to the crimes with which he has been charged.

We have heard endless chatter from an array of experts, including professional serial killer profilers with the FBI, as they speculate about how a man of such stature could possibly commit these horrendous crimes.

But we have not heard about violence against women. We have not heard from those experts. And yet, once the momentary thrill of Williams’ elevated position within the military fades, as it will do, that is what this story is really about.

The real story is not about Williams’ military rank. In this country, men rape women every day. More than one woman a week is murdered by a man. What these men do for a living is not relevant. The fact that Canadian culture, values and laws allow men to rape, beat and kill women is relevant.

The war being waged on women here at home every day, year in and year out is what is relevant.

In my wildest dreams, I could not even imagine the issue of violence against women receiving the number of column inches or radio or television minutes that have been devoted to the sensationalized aspects of this story.

Today is Jessica Lloyd’s funeral. There is nothing that can make her death anything less than a terrible tragedy.

Perhaps, though, the media might take the opportunity to stop talking about Williams and the military and instead talk about her murder, the murder of Marie France Comeau and the rapes of the two other women in a way that just might mean one day women in this country will be able to live free from the threat and reality of male violence.

CEDAW, family law and women's equality

These remarks were made on February 8, 2010, at the Kathleen A. Lahey Feminist Speaker Series, held annually at the University of Windsor Faculty of Law. This year’s lecture was entitled : Why the F word matters more than ever: Using CEDAW to promote women’s equality in diverse societies.

The family remains an institution of significant inequality for women, especially heterosexual women, in Canada. That inequality is exacerbated upon relationship breakdown by the very law to which women turn for assistance. When violence is present, not only is inequality an issue, but also safety and, sometimes, survival. These can become, literally, life and death cases.

In my remarks tonight, I am going to first provide you with a realistic description of women’s roles within the family then take a look at some of the ways in which family law does not support women’s equality. I will conclude with an argument in favour of employing CEDAW, other international tools and legal commitments made by the Canadian government to fight against systemic bias against women in family law.

Married or living common-law with children, it is still women who do most of the child rearing and housework and who are more likely to stay at home with a sick child or take time away from work to deal with family-related issues such as parent-teacher interviews and medical appointments. It is also women who lose the most time from work to care for extended family members.

“A woman with children is always a mother, whether in the work force or at home with her children. The presence of children affects women’s lives differently from the way it affects most men, in terms of both her life choices and her life chances.”

According to data gathered in the 2005 General Social Survey, women spend 4.3 hours per day compared to men’s 2.5 on unpaid housework and child care. This at a time when more and more women, especially those with young children are employed outside the home: by 2004, 65% of women with children under the age of 3 were working, a figure which is more than double the employment rate for women in this category just 30 years before.

Women miss more time from work because of family responsibilities: in an average week in 2004, 5% of women and only 2% of men missed work time due to family responsibilities. Overall that year, women missed 10 days of work and men just 1.5 to take care of family responsibilities.

Even without children, women are significantly disadvantaged when they are married or living common-law.They earn less in the paid workforce, meaning they are likely to have fewer savings and less likely to have a pension/RRSP, which leaves them more vulnerable in the event of relationship breakdown

The inequality and disadvantaging of women in the labour market (women continue to earn just 73 cents for every dollar earned by men), in tandem with the heavy load of unpaid housework and caring for children and other family members, places women in a situation of social and economic inequality compared with their husbands, and increases their dependency.

This economic dependency in turn exacerbates women’s vulnerability to the power and control that may be exercised by a spouse after divorce, and their vulnerability to the volatility and violence exhibited by former spouses.

Furthermore, women are the primary victims of violence within the family.

According to a 2000 Statistics Canada report women were 5 times more likely than men to have been injured during an assault and to require medical attention, 5 times more likely to fear for their lives, 5 times more likely to have been choked and 3 times more likely to require time off from work because of partner-perpetrated violence or abuse.

Even a cursory glance at the findings of this report indicates that the violence experienced by women and men is neither similar nor equivalent. As well, women are more likely to be victims of stalking and sexual assault, and to experience substantial psychological impacts from whatever forms of violence they experience.

Gendered differences are clearly apparent in cases of homicide. The 2007 General Social Survey reported that perpetrators of spousal homicide or attempted homicide were overwhelmingly male (82% compared with 18% who were female). These findings are confirmed and elaborated upon in every report of Ontario’s Domestic Violence Death Review Committee.

When relationships end, people turn to the family law to help them resolve the issues that have arisen and, especially where there are children, to help them make a plan to move forward in their lives.

Because of systemic inequality in both the law and family court processes, as well as systemic and individual bias in the attitudes of the professionals involved with family court, women are not treated with equality in their journey through family court. The “gender-neutral” approach, so popular with policy makers and legal practitioners, is, in fact, anything but. Because it does not recognize the realities of women’s lives within the family, it actually discriminates against women and creates gender-based barriers to equality.

Women are placed at ongoing and increased risk of harm, including lethal harm, and often find themselves with long term orders (especially when there are young children) that force them into ongoing contact with an abusive former partner.

Even when ongoing abuse and/or violence are not present, bias in family law and the court process can mean that women are seriously disadvantaged financially, to the point they must live in poverty, relying on the state, other family members and/or friends for support.

While this bias exists in every aspect of family law, I am just going to restrict my comments to custody and access, because it provides a simple and dramatic illustration of what I am saying.

The underlying principle/ethic that it is in the best interests of the children to have maximum contact with both parents does not reflect the reality of the roles played by parents in most Canadian families. Much is made of the changing role of fathers in Canadian families and of stay at home dads who spend at least as much time with the children as do the mums. Like other Canadians, those of us who work for women’s equality know such men and hope for continued and meaningful movement towards increased equality for family and home responsibilities between the sexes.

However, the fact is that these men remain a minority. Despite this, the law acts as though this is the norm in Canadian families.

As a result, women and children are forced into joint custody/shared parenting/equal parenting regimes that are not reflective of the pre-separation parenting patterns within the family and that make it difficult for anyone to move on to a new family construction. Where violence is a factor, these arrangements are, at best, dangerous and, at worst, lethal.

Child support legislation that provides for a lesser amount of support to be paid if the paying parent has the child with him at least 40% of the time encourages fathers, whether or not they have historically played an active parenting role within the family, to seek shared custody in order to minimize their financial obligations.

The maximum contact or, as it is often called, “friendly parent,” provision in the federal Divorce Act makes it difficult for a mother who has legitimate concerns about the father’s parenting to seek an order limiting access.

Family court process issues do almost as much to discriminate against women as the law itself.

The court process is long and drawn out. Women often capitulate to arrangements they do not really want simply because they do not have the energy or money to continue.

Too many lawyers, mediators, judges and other court personnel continue to misunderstand or diminish the role of violence of women in custody cases. Women find themselves being discouraged from raising the issue in their cases and being encouraged to agree to joint custody and liberal access arrangements that place them and their children at risk of ongoing harm.

Governments continue to try to move cases into alternative dispute resolution as a way of cleaning up the enormous backlog in family court and to cut costs, even though ADR can be a dangerous place for a woman whose partner is an abuser or even where there is an unequal balance of power.

Legal bullying, especially when an abusive spouse is representing himself, is rampant in family court.

Somewhere between 60 and 70 percent of parties in family court today are unrepresented. All people in family court deserve legal representation, but none more than women whose partners are abusive. For these women, ensuring that their partners are represented is equally important.

Court orders are poorly enforced and are never truly permanent, meaning women are often forced to return to court again and again to deal with frivolous or vexatious proceedings undertaken by their former partner.

As I have described, family court is a pit of inequality for women. However, it has also been, and continues to be, an area where a huge amount of women’s equality advocacy has been done, and with good affect. Historically, we can look at changes to family law to ensure that married women share equally in family property. More recently, we can look at:
 The end of religious laws in family law arbitration
 Mandatory consideration of violence in the best interests of the child test in custody and access cases
 Strengthening of restraining order legislation

I would be remiss if I did not make a few comments about fathers’ rights groups and the role they have played in maintaining women’s inequality in family court. These men lurk on the horizon, and often much closer than that, poised to claim that it is men, not women, who are treated unfairly by family law and court. They have enormous political clout and public popularity because they rely on a personal troubles discourse that resonates powerfully with the general public.

Right now, Bill C-422, a Bill to amend the Divorce Act, is awaiting second reading by the federal government. Because this is a private member’s bill, it will survive the prorogation of Parliament and will reappear on the Order Paper when Parliament resumes in March. This Bill, if passed, would implement a regime of presumptive equal parenting – a nightmare for the thousands of women and children who flee abusive family situations and an enormous step backwards for women’s equality generally.

Coming as it does at a time of increasing political conservatism and even fundamentalism, at a time when unsubstantiated allegations of parental alienation against mothers are at an all-time high in family court and when fewer and fewer women in family court have legal representation, the Bill offers an approach to dealing with post-separation parenting conflict that can appear attractive to politicians, the media, judges, lawyers and the public.

Indeed, even within the progressive media, there has been considerable support for this approach to post-separation parenting because “the left” persists in promoting an idealized but unrealistic image of coparenting in heterosexual couples.

In principle, the concept that both parents have ongoing responsibilities towards their children is unquestionably a good one. Many women struggle on a daily basis to convince their spouses that they do in fact have parenting responsibilities with respect to their children, both during the marriage and after separation or divorce.

Unfortunately, as I noted earlier, it is still women who do the majority of housework, provide most of the day to day care for the children, who arrange their work schedules to accommodate their children's needs and who take time off from work to care for sick children.

Most mothers would welcome increased parental involvement from fathers after a divorce, on the condition that it does not threaten their children's well-being or security.

However, this is not the reality in most families. While the Divorce Act is long overdue for review and amendment, this is a task that needs to be undertaken from a women’s equality perspective. Such a perspective would not support the institution of mandatory equal parenting provisions.

Equality is the law of Canada. The Canadian government has committed itself, domestically and internationally, to evaluating the impact of its laws and policies on women, by doing a gender-based analysis. Indeed, in May 1995, the Federal, Provincial and Territorial Ministers Responsible for the Status of Women agreed “on the importance of having gender-based analysis undertaken as an integral part of the policy process of government”. A few months later, Status of Women Canada published a paper in which it stated: “the federal government will, where appropriate, ensure that critical issues and policy options take gender into account”. More specifically, this document states:

A gender-based approach ensures that the development, analysis and implementation of legislation and policies are undertaken with an appreciation for gender differences. This includes an understanding of the nature of relationships between men and women, and the different social realities, life expectations and economic circumstances facing women and men. It also acknowledges that some women may be disadvantaged even further because of their race, colour, sexual orientation, socio-economic position, region, ability level or age. A gender-based analysis respects and appreciates diversity.

Internationally, Canada participated in the development of the 1995 Commonwealth Plan of Action on Gender Development that called for a gender-based management system. It also endorsed the Beijing Platform for Action (“PFA”) that calls on governments to “seek to ensure that before policy decisions are taken, an analysis of their impact on women and men, respectively, is carried out”. More specifically, the Beijing PFA calls on governments to “review policies and programmes from a gender perspective ”and to “promote a gender perspective in all legislation and policies”. Canada has also endorsed “Further actions and initiatives to implement the Beijing Declaration and the Platform for Action,” which was adopted by the U.N. Special Assembly on June 10, 2000.

The tools exist, yet they are almost never used in family court. There are good reasons for this. It is difficult to find women who are willing to be part of a test case when they are fighting to keep their children with them. The high level of unrepresented women in family court creates another barrier.

Despite these barriers, we need to find ways to bring these international tools into family court to fight against systemic bias and discrimination and to make the case for women’s structural and substantive equality.

Family law as much as any other area of law deserves to be offered a comprehensive gender equality analysis and strategy. Without it, any legislation on custody and access will promote women’s continued inequality. It will not enable women to act in their own best interests or in the best interests of their children in matters of custody and access; interests that are inextricably linked.

In fact, as long as women remain the primary caregivers of children, women’s equality is in the best interests of children, and law reform can and must simultaneously take into account and promote both the best interests of children and the equality interests of women.