I want to talk about some contradictions and challenges that I see arising for women – and for feminist strategy – in the field of family law in Canada.

Most of my feminist work has been focused on the ways in which familial ideology – often a very traditional, culturally specific, heterosexual, middle-class familial ideology – has infused judicial decision-making in various fields, such as child custody law (Boyd 2003). I’ve examined how some mothers can fare reasonably well in child custody disputes while others can be treated incredibly badly. I have concluded that all too often a mother’s class, race, sexuality, or labour force status – or simply her expression of independence of spirit – can play a big role in determining how she fares in any dispute regarding her children. That is, if a mother departs from expected norms of maternal behaviour by, for instance, resisting expectations that she nurture her child’s relationship with a father, her claim may be prejudiced.

Based on the phone calls that I receive regularly from desperate mothers – which is somewhat surprising, given that I am an academic rather than a practising lawyer – I am guessing that the problems that many women face are not going away. Indeed, they are exacerbated in a climate where obtaining legal advice is beyond the reach of many women due to legal aid cutbacks, or it is impeded by the challenges of language and cultural barriers, as is the case for some immigrant women.

Most recently, I have been looking at the impact of our increasingly mean-spirited state – and neo-liberal ideology – on family law (Young and Boyd) and also at shifting definitions of who is a legal family and who is a legal parent (Boyd 2007).

I think we are at a point where incredibly complex contradictions are arising in family law. These contradictions also pose difficult challenges for feminists in terms of strategies.

I’ve been concerned that an increasing focus on neutrality, including gender neutrality, has made it virtually impossible to find a framework within which to capture the ongoing, highly gendered experiences that many women have, specifically as mothers.

In a climate where we are all expected to compete equally in the labour force, and when hours of work appear to be increasing rather than decreasing for those of us who actually have full-time jobs, the worker has become a neutral construct. It has become harder and harder to claim that women may experience difficulty in competing in the labour force due to caregiving responsibilities for children and, increasingly, elderly parents – and maybe even male partners. In spousal support decisions, for instance, judges often expect women to work full time, even if they have responsibility for children at home.

Now that employed men can take parental leave (and seem increasingly to do so, in my workplace at least), employers no longer see caregiving as being gendered female. And while encouraging men to do caregiving work is something that feminists have fought for, this gender neutrality can mask a downside for women. Just as men tend to have better jobs than women, so too will they now qualify for parental leave more easily (and with better financial compensation) than women.

Is that equality?

Moreover, in the name of equality, the fathers’ rights movement has had an impact on family law, with biological fathers increasingly gaining rights based on a genetic tie alone, e.g., to be named on the birth registry.[1] This right, in turn, enables genetic fathers to play a role in determining children’s surnames, and it will potentially allow them to dictate how a child should be raised or to claim time with that child – regardless of whether a father has a positive relationship with the mother, and regardless of whether he shares responsibilities for that child’s care. How we are to reconcile this trend with the ability of lesbian co-mothers to register as ‘co-parents’ is somewhat of a mystery.[2]

The ability of mothers to parent autonomously from the biological fathers of their children has been seriously compromised due to this genetic fundamentalism.

The dominant discourse now is CHILDREN NEED FATHERS. Mothers have become increasingly invisible in legal discourse, albeit they are still pretty visible in the daily lives of children. It’s not a new thought to say that Mothers have Responsibilities, whereas Fathers have Rights. But this slogan does (still) seem to accurately describe where we are at.

On a more positive note, we have witnessed a liberalization of family law over the past couple of decades, with increased recognition of unmarried cohabitants – including same-sex cohabitants – and this has culminated in the legalization of same-sex marriage and considerable legal recognition of same-sex parents. Women can now choose to live married or unmarried (although some rights, notably to property sharing, still vary depending on that choice). And women can also choose to live with either a man or a woman and still be legally recognized. Choice rules! We should be happy, right?

What is not so positive is that the victory of legalized same-sex marriage has proceeded on the basis of a reassertion of socially conservative discourses on marriage – and these discourses are generally bad for women. As various Canadian feminists have pointed out, the same-sex marriage campaign has proceeded without a critique of gendered inequalities within the family and with a seemingly shared understanding among litigants, supporters, and judges that marriage is a fundamental social institution. Professor Hester Lessard of the University of Victoria Faculty of Law has referred to this as ‘marriage fundamentalism’ (Lessard, “Charter Gridlock” 292). Shelley Gavigan has pointed out that many of the arguments in favour of same-sex marriage were premised on a notion that marriage would give the children of lesbian couples ‘legitimacy’ (Gavigan 336). This notion re-invokes what we all probably thought was an obsolete notion of marriage and legitimacy as important signifiers for the status of children. In other words, we thought we’d rejected the idea that children need two married parents in order to be treated properly in society, but, bizarrely, this idea seems to have been reasserted in the context of same-sex marriage!

There are, then, ways in which the victories in relation to recognition of same-sex relationships – which must of course be applauded – have simultaneously reinforced exclusionary practices in relation to other marginalized groups, such as single mothers.

And what of same-sex parenting? You might say to me: Look at that amazing court decision in Ontario in which two lesbian co-mothers and the biological father/sperm donor were all three recognized as parents.[3] And I agree, it’s a most interesting decision, and it seems to suit the needs and wishes of that particular family – all to the good.

However, when we consider that decision through a lens that seeks to correct the relative invisibility of mothers and the increased visibility of fathers’ rights, what happens next? Most provinces have laws on parenting that are grossly out of date and premised on the idea of two parents of the opposite sex. Partly for this reason, my own province of British Columbia is in the process of reforming its Family Relations Act, which regulates such matters. (And we should, by the way, be getting comments and submissions into the government in order to try to influence the process!)[4]

But what will law reformers do? Will they follow this progressive decision out of Ontario, legally recognizing three parents on the assumption that, for most children, it will be a good thing to recognize a biological father, even if a child is being raised primarily by two mothers? If so, will we be able to have situations where two women can be sole heads of a household with a child in it?

Or do we need a father figure in most cases? What does that say about single mothers, and lesbian mothers, and their ability to parent autonomously from men if they so desire? If a biological father CHOOSES to express an interest in being involved with a child, does a mother have any capacity whatsoever to determine what her family form will look like?

So the problem is this: traditional discourses of motherhood and fatherhood, and of gender, now co-exist with equal-rights discourses invoked by fathers and by same-sex partners. I worry that neo-liberal discourses of choice, neutrality, and equality will make it increasingly difficult for women to point to the ongoing gendered nature of their lives and the fact that many women struggle on their own to provide a decent home for their children; that they will make it increasingly difficult for women to escape violent relationships with men; and that they will make it difficult for women to legally define their own chosen family units.

It’s pretty hard to come up with one strategy that will work for all scenarios. We want, on the one hand, to recognize ongoing gendered inequalities in the family; on the other, we want to facilitate the creation and recognition of families that are not premised on traditional norms of male and female behaviour, or heterosexuality.

Overall, I am worried that in a political climate that expects women to be extremely responsible and, often, self-sacrificing citizens – good mothers, good workers, good spouses – women’s capacity to be autonomous has diminished. Which is deeply ironic! Because it has not been so long since we were expected to be self-sacrificing wives and mothers without much autonomous choice over our destinies, reproductive or otherwise! That, in part, is what the second-wave women’s movement fought against.

And I am now wondering whether some of those same problems have been reconfigured within a different language or framework. Even as we make ‘progress,’ then, we must be vigilant about the terms on which progress proceeds and make sure that the success of one group does not result in marginalization for another.

As Diana Majury has told us, equality is a process, not an end in itself.[5] As such, it is an ongoing project, one that must be considered in relation to family law as well as other fields.