In 1927, section 24 of the British North America Act – at the time, Canada’s Constitution and therefore its highest law – said that only “qualified persons” could be appointed to the Senate. Until this time, the government had interpreted persons to be men and only men.
In what became known as the Persons Case, five women activists challenged this interpretation of the word “persons.” They lost their case at the Supreme Court of Canada, which upheld the traditional interpretation of persons as meaning men. In response, one woman, Mary Ellen Smith, had this to say:
“The iron dropped into the souls of women in Canada when we heard that it took a man to decree that his mother was not a person.”
No doubt with iron in their souls, the five women continued their case to Britain’s Privy Council which had ultimate authority over Canadian legal issues. They were finally successful, with the Privy Council declaring that women were included in the meaning of the word persons. Lord Sankey declared, in reading the decision, that:
“The exclusion of women from all public offices is a relic of days more barbarous than ours.”
That may have been the case, but women continue to receive discriminatory treatment before and under the law in this country.
There are no shortages of examples of this in the history of Canadian family law. Here are just a few, to remind all of us, in the lead up to the International Day for the Elimination of Violence Against Women, both how much women have achieved and how much remains to be done.
Before 1968, divorce was a matter of provincial law, except in Quebec and Newfoundland, where the person wanting to be divorced had to seek a private Act of Parliament.
Elsewhere, the provinces largely incorporated the English Matrimonial Causes Act of 1857. Under this legislation, a man could obtain a divorce if his wife committed adultery, but a woman could only obtain one if she could prove that her husband had committed incestuous adultery, rape, sodomy, bestiality, bigamy or adultery coupled with cruelty or desertion. In other words, a woman only had to be a little bit bad for her husband to be allowed to divorce her, but a man had to be very, very bad if his wife wished to divorce him.
If the wife had committed adultery, she was not entitled to support. The message was clear: bad behaviour will be punished. (While men were not entitled to support in any situations, they were, most often, the sole breadwinners in their families, so not in such need of support as women at that time were.)
Canada’s first Divorce Act, created in 1968, addressed some of these historic inequities. Divorce became equally accessible to both husbands and wives, the concept of no-fault divorce was introduced and eligibility for spousal support was separated from behaviour, with both women and men being able to seek support from their former spouse. Two decades later, when the Divorce Act was amended again, the concept of no-fault divorce was taken farther. While it is still possible to seek a divorce on the grounds of extreme cruelty or adultery, the simple fact of living separate and apart has become the predominant ground on which people seek a divorce.
When Irene Murdoch left her abusive husband in 1973, she made a claim for half the value of their Alberta family farm (registered in her husband’s name, as was most often the case at that time), which they had worked together for 25 years. As she said:
The lower courts did not agree with her. She appealed to the Supreme Court of Canada, which declared that she had done nothing more than any other wife, so there was no economic partnership and she was not owed a share of the farm’s value. It awarded her $200 a month in support.
Helen Rathwell left her husband just a few years later in 1978, after years of sharing the work of running the Saskatchewan family ranch, and faced the same response from the lower courts when she made a claim for a share of the farm’s value.
However, the Supreme Court, in a 5 – 4 decision, found that to deny her a share in the assets would unjustly enrich her husband. Justice Dickson wrote:
“the kitchen is just as much an integral part of the farming operation as the feedlot or the machine shed.”
While Irene Murdoch did not benefit personally from her case, it became the starting point for important law reform initiatives, especially after the Rathwell case. Eventually, provincial and territorial family laws understood that marriage was a partnership, with the spouses making equal if different contributions. It became the law that the value of all property — regardless of who paid for it or whose name it was registered in — be shared equally upon the end of the marriage.
Where are we now?
There is no doubt that family laws in Canada are better than they were 50 years ago. And, they continue to improve. The most recent revisions to the Divorce Act, for instance, which came into effect earlier this year, include a focus on family violence that will increase the safety and well-being of women and children. Ontario has made similar revisions to its Children’s Law Reform Act.
As always, more change is still needed to provide women with the equality promised by the Charter of Rights and Freedoms. Lawyers and judges need to be better educated about violence within families, particularly its gendered reality. Family laws need to end the distinction between married and common-law relationships so women are not financially disadvantaged when they are not married to their partner. Police need to enforce breaches of family court orders.
I am confident that the iron dropped into our grandmothers’ souls back in 1928 remains in our souls today. With that strength, we will continue our work to ensure that the family laws in this country provide women with substantive and not just formal equality.