Celebrating Women and the Law

March 8, 2022 heralded International Women’s Day. There’s perhaps no better time to reflect on some of the hurdles women have faced – and the progress they have made – in gaining access to justice.

These hurdles have taken various forms. The first one is financial: Women have been historically disadvantaged from a lack of earning opportunities, diminished economic power, and unchecked family duress or even abuse. This has put them in a place of great hardship when trying to get access to the Family court system. That’s a significant obstacle, since that very system is the one that can liberate them from a bad marriage or family situation, and get them much-needed child or spousal support funds to which they are entitled.

Over the years, the Canadian and Ontario governments have responded to these issues by increasing various access-to-justice initiatives aimed specifically at eliminating these kinds of roadblocks. There have also been improvements in the availability of Legal Aid funding to disadvantaged groups. The federal Divorce Act was also amended to broaden the definition of “family violence”, and to enhance the legal recourse of those who are subjected to it.

And of course the unexpected arrival of the COVID-19 pandemic has forced a sea change in the way the Justice system operates on a practical level. Paper-based court filings in Family Law have been replaced by online applications. In-person trials and court appearances have switched to online hearings – in some respects, permanently. This makes the justice system more accessible to a larger sector of society.

Spousal and child support is another area where great strides have been made to overcome gender inequality – this time, for the benefit of both genders.

First of all, the Divorce Act has recently been stripped of all language that implies “winners” and “losers” in the Family Justice process. Adversarial-sounding language around “custody” and “access” has been replaced with neutral terms like “parenting time”. This avoids a battle-of-the-sexes approach to disputes between parents.

Next, the gender-neutral spousal support provisions of the Divorce Act and the Spousal Support Advisory Guidelines are another cornerstone to heightened fairness. They side-step traditional stereotypes, which sees the husband financially supporting the wife after divorce. Instead, they require courts to take a balanced look at a host of established legal tests and factors, including the contributions and roles assumed by each of the spouses in the marriage. This can only benefit both genders, in the long run.

Finally, there has also been progress in overcoming inherent social biases, stereotypes, and outright myths. For example, women have traditionally been relegated to the assumed gender roles of “homemaker” and “mother”. Family courts unconsciously adopted those preconceptions in the past, especially when making rulings around child custody.

Now, there is raised awareness around the issue of judicial prejudice. Society has always entrusted judges to leave any personal biases “at the door”, and to be alert to lingering preconceptions and stereotypical thinking when making individual rulings. This now extends to gender-based systemic and individual discrimination. With greater publicity and enlightenment to the problem, judges have become more aware of the dangers. Society now demands they make parenting time and support orders that are fair and untainted in every respect.

Collectively, this is a lot to be proud of. But there’s still plenty of room for more progress.

Happy International Women’s Day! And Happy Women’s History Month!