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.