1. Apart from developments in the area of family law itself—the introduction of maintenance enforcement programs in most provinces and changes in federal and provincial enforcement legislation and deliberations over child support guidelines—government awareness and response to the issue of divorced custodial mother's financial plight is reflected in the new child tax benefit. In abandoning the previous family allowance system and introducing the new child tax benefit, the government claimed one of its aims was to increase the responsiveness of the benefit to variations in family income. Notably, the only variation in family income that the new child tax benefit in fact recognizes is income changes resulting from marriage breakdown. On the other hand, the responsiveness of the new benefit will be worse than the previous system for income changes due to other circumstances such as unemployment or a move to a lower paying job.

2. In this paper, “support” and “maintenance” are used interchangeably. Whereas divorce legislation refers to “support”, some provinces and territories still use the term “maintenance”.

3. Fineman, M., “Dominant Discourse, Professional Language, and Legal Change in Child Custody Decisionmaking” (1988) 101:4Harvard Law Review 727 at 769CrossRefGoogle Scholar.

4. Walker, G., Family Violence and the Women's Movement: The Conceptual Politics of Struggle (Toronto: University of Toronto Press, 1990) at 10Google Scholar.

5. Ibid. at 12.

6. Morton, M., “The Cost of Sharing, the Price of Caring: Problems in the Determination of ‘Equity’ in Family Maintenance and Support” in Brockman, J. & Chunn, D., eds., Investigating Gender Bias: Law Courts, and the Legal Profession (Toronto: Thompson Educational Publishing, 1993) 191Google Scholar.

7. Law Society of British Columbia Gender Bias Committee, Gender Equality in the Justice System, vols. 1 & 2 (Vancouver: Law Society of British Columbia, 1992) at 5–2Google Scholar.

8. A requirement of s. 15 of the Charter.

9. In fact, the recent landmark decision of the Supreme Court of Canada in Moge v. Moge overturns the idea that all women can and should be entirely “self-sufficient” and states that the 1985 Divorce Act requires that any economic disadvantage suffered by women because of child care and house work responsibilities undertaken during the marriage be recognized. It also establishes that the causal connection between a mother's obligation for childbearing and rearing, homemaking, and age and any consequent disadvantages to employment opportunities is a common-sense, non-technical matter.

10. Fineman, M., “Custody Determination at Divorce: The Limits of Social Science Research and the Fallacy of the Liberal Ideology of Equality” (1989) 3:1C.J.W.L. 88Google Scholar.

11. Supra note 7 at 5-3.

12. Rogerson, C. J., “Winning the Battle, Losing the War: The Plight of the Custodial Mother” in Hughes, M. E. & Pask, E. D., eds., National Themes in Family Law (Toronto: Cars well, 1988) 21Google Scholar.

13. Cf. Pask, D., “Family Law and Policy in Canada: Economic Implications for Single Custodial Mothers and their Children” in Hudson, J. & Galaway, B., eds., Single Parent Families: Perspectives on Research and Policy (Toronto: Thompson Educational Publishing, 1993) 185Google Scholar; Finnie, R., “Women, Men, and the Economic Consequences of Divorce: Evidence from Canadian Longitudinal Data” (1993) 30:2Canadian Review of Sociology and Anthropology 205CrossRefGoogle Scholar; The Law Society of British Columbia Gender Bias Committee, supra note 7; Department of Justice, Evaluation of the Divorce Act, Phase II: Monitoring and Evaluation (Canada: Bureau of Review, 1990)Google Scholar; Pask, E. D. & McCall, M. L., How Much and Why? The Economic Implications of Marriage Breakdown: Spousal and Child Support (Calgary: Canadian Research Institute for Law and the Family, 1989)Google Scholar; Fudge, J., “The Privatization of the Costs of Social Reproduction: Some Recent Charter Cases” (1989) 3:1C.J.W.L. 246Google Scholar; Rogerson, ibid.; Mossman, J. & McLean, M., “Family Law and Social Welfare: Toward a New Equality” (1986) 5 Can. J. Fam. L. 79Google Scholar; Weitzman, L., The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (New York: Free Press, 1985)Google Scholar; Bridge, K. L., An International Survey of Private and Public Law Maintenance of Single-Parent Families: Summary and Recommendations (Ottawa: Documentation Centre, Status of Women, 1985)Google Scholar; Canadian Institute of Law Research and Law Reform, Matrimonial Support Failures: Reasons, Profiles and Perceptions of Individuals Involved (Edmonton: Canadian Institute of Law Research and Law Reform, 1981)Google Scholar; Chamber, D., Making Fathers Pay (Chicago: University of Chicago Press, 1979)Google Scholar.

14. See below for a further discussion of these issues and J. Pulkingham, “Investigating the Economic Circumstances of Divorced Parents: Implications for Family Law Reform” [unpublished paper, available from the author upon request/.

15. Eichler, M., “The Limits of Family Law Reform or the Privatization of Female and Child Poverty” (1990) 7:1Canadian Family Law Quarterly 59Google Scholar.

16. Weitzman, supra note 13.

17. Mossman & McLean, supra note 13 at 89.

18. Rogerson, supra note 12 at 21.

19. The Ontario Advisory Council on Women's Issues, Brief to the Ontario Government on Access Orders (1991) at 3Google Scholar.

20. Although the concept of the feminization of poverty is typically used in an unqualified way within the literature on women and divorce, commentators concerned with women and poverty more generally, point to the short-comings of this particular label. Cf. Kitchen, B., “Framing the Issues: The Political Economy of Poor Mothers” (1992) 12:4Canadian Woman Studies/Les Cahiers de la Femme 10Google Scholar; Evans, P., “The Sexual Division of Poverty: The Consequences of Gendered Caring” in Baines, C., Evans, P. & Neysmith, S., eds., Women's Caring: Feminist Perspectives on Social Welfare (Toronto: McClelland & Stewart, 1991)Google Scholar; Eichler, supra note 15; Millar, J. & Glendinning, C., “Invisible Women, Invisible Poverty” in Glenndinning, C. & Millar, J., eds., Women and Poverty in Britain (Sussex: Wheatsheaf Book, 1987)Google Scholar; Millar, J. & Glendinning, C., “Gender and Poverty” (1989) 18:3Journal of Social Policy 363CrossRefGoogle Scholar; Brenner, J., “Feminist Political Discourses: Radical Versus Liberal Approaches to the Feminization of Poverty and Comparable Worth” (1987) 1:4Gender & Society 447CrossRefGoogle Scholar.

21. Evans, ibid. at 172.

22. Ibid. at 173 and 198 (note 3).

23. Even though Statistics Canada collected information that enabled this figure to be produced, it only began to publish and make publicly available information about the incidence of poverty for married women from 1980 onwards. For a more detailed discussion of this issue, see Evans, ibid.

24. Ibid. at 172–73.

25. Cf. Pahl, J., Money and Marriage (London: Macmillan, 1989)CrossRefGoogle Scholar; Pahl, J., “The Allocation of Money and the Structuring of Inequality Within Marriage” (1983) 31:2Sociological Review 237CrossRefGoogle ScholarPubMed; Vogler, C. & Pahl, J., “Social and Economic Change and the Organization of Money Within Marriage” (1993) 7:1Work, Employment and Society 71CrossRefGoogle Scholar.

26. Evans, supra note 20 at 198 (note 3). Research by Dooley also points to the decline in the incidence of “low income” experienced by most family types, the exceptions being lone mothers and couples under the age of 25. M. D. Dooley, “Recent Changes in the Economic Welfare of Lone Mother Families in Canada: The Roles of Market Work, Earnings and Transfers” in Hudson & Galaway, eds., supra note 13, 115.

27. Brenner, supra note 20 at 450.

28. Moore, M., “Women Parenting Alone” in McKie, C. & Thompson, K., eds., Canadian Social Trends (Toronto: Thompson Educational, 1990)Google Scholar.

29. Evans, supra note 20.

30. Battle, K., “Policy Initiatives Related to the Well-Being of Women and Children” (Presentation to the Critical Review of Child Support Guidelines Workshop, Canadian Advisory Council on the Status of Women, Ottawa, 22–24 May 1992) [unpublished] at 52Google Scholar.

31. Brenner, supra note 20 at 452.

32. Evans, supra note 20; Eichler, supra note 15; Foote, C., “Recent State Responses to Separation and Divorce in Canada: Implications for Families and Social Welfare” (Winter 1988) 5 Canadian Social Work Review 28Google Scholar; Brenner, supra note 20.

33. Eichler, supra note 15 at 66–69. The three models are the patriarchal model, the individual responsibility model, and the social responsibility model. In the patriarchal model of the family, no distinction is made between the household and the family unit; the family is the unit of analysis; the father/husband is responsible economically; the mother/wife is responsible for nurturing and care; respective responsibilities are clearly delineated and mutually exclusive; and where the father and mother are alive, the state assumes no responsibility for economic or physical support. The individual model of the family parts company with the patriarchal model in terms of the issue of who is responsible for support and care. In the individual model, both parents are seen to be equally responsible for financial support and care of each other and offspring. Again, however, the society is not responsible for supporting families in any way where parents are present. The social responsibility model of the family is premised upon the assumption that all adults are responsible for their own economic well-being, unless this is impossible, in which case responsibility shifts to the state, not the family. Individuals in need of should have this need financed by the state, not the family. Childcare costs are borne by the parents and the state, regardless of the marital status of the parents.

34. Ibid. at 70.

35. Fudge, J., “The Privatization of the Costs of Social Reproduction: Some Recent Charter Cases” (1989) 3:1C.J.W.L. 246Google Scholar.

36. Shewchuk v. Ricard (1986), 24 C.R.R. 45, 2 B.C.L.R. (2d) 324 (B.C.C.A.)

37. Ibid. quoted in Fudge, supra note 35 at 250.

38. Cf. Department of Justice, supra note 13.

39. Pask & McCall, supra note 13.

40. Department of Justice, supra note 13. Using Revenue Canada tax data, Diane Galarneau found that 21% of single-parent tax filers reported having received “alimony” (child and/or spousal support) in 1988. These figures exclude divorced custodial mothers who are now re-partnered and who may be receiving support payments. The average monthly amount of alimony tax filers reported receiving was $383. There are no data sources available that contain complete information on all those who receive or make support payments. Galarneau, D., “Alimony and Child Support” (1992) Summer Perspectives 8Google Scholar.

41. Federal/Provincial/Territorial Family Law Committee, Child Support: Public Discussion Paper (Ottawa: Department of Justice, 1991)Google Scholar.

42. Ibid. at 1.

43. E. B. Zweibel, “Canadian Income Tax Policy on Child Support Payments: Old Rationales Applied to New Realities” in Hudson & Galaway, eds., supra note 13, 157.

44. Federal/Provincial/Territorial Committee on Child Support Guidelines, The Financial Implications of Child Support Guidelines, Research Report (Ottawa: Department of Justice, 1992)Google Scholar.

45. Brenner, supra note 20 at 454.

46. Cf. Boyd, S., “Child Custody and Working Mothers” in Martin, S. L. & Mahoney, K. E., eds., Equality and Judicial Neutrality (Toronto: Carswell, 1987) 168Google Scholar; Boyd, S., “From Gender Specificity to Gender Neutrality? Ideologies in Canadian Child Custody Law” in Smart, C. & Sevenhuijsen, S., eds., Child Custody and the Politics of Gender (London: Routledge, 1989) 126Google Scholar; Boyd, S., “Child Custody, Ideologies and Employment” (1989) 3:1C.J.W.L. 111Google Scholar; Boyd, S., ”Potentialities and Perils of the Primary Caregiver Presumption” (1990) 7 Canadian Family Law Quarterly 1Google Scholar; Fineman, “Dominant Discourse”, supra note 3; Fineman, “Custody Determination”, supra note 10; M. Eichler, “Lone Parent Families: An Instable Category in Search of Stable Policies” in Hudson & Galaway, eds., supra note 13.

47. Gordon, L., “Family Violence, Feminism, and Social Control” in Gordon, L., ed., Women, the State and Welfare (Madison, Wise.: The University of Wisconsin Press, 1990)Google Scholar; Fineman, “Custody Determination”, ibid.; Ursel, J., Private Lives, Public Policy: 100 Years of State Intervention in the Family (Toronto: Women's Press, 1988)Google Scholar.

48. Weitzman, supra note 13.

49. Some would argue, however, that despite recent legal reform and the new rhetoric, judges are still guided by a maternal preference.

50. Cf. C. Smart, “Power and the Politics of Child Custody” in Smart & Sevenhuijsen, eds., supra note 46, 1; Boyd, “Child Custody and Working Mothers”, supra note 46; Boyd, “From Gender Specificity to Gender Neutrality”, supra note 46; Boyd, “Child Custody, Ideologies and Employment”, supra note 46; Boyd, “Potentialities and Perils”, supra note 46; S. Boyd, “Investigating Gender Bias in Canadian Child Custody Law: Reflections on Questions and Methods” in Brockman & Chunn, eds., supra note 6; J. Brophy, “Custody Law, Child Care and Inequality in Britain” in Smart & Sevenhuijsen, eds., supra note 46, 217; Fineman, “Dominant Discourse”, supra note 3; Fineman, “Custody Determination”, supra note 10; Eichler, “The Limits of Family Law Reform”, supra note 15; Rogerson, supra note 12; Drakich, J., ”In Search of the Better Parent: The Social Construction of Ideologies of Fatherhood” (1989) 3:1C.J.W.L. 69Google Scholar.

51. Boyd, “Child Custody, Ideologies and Employment”, ibid. at 112.

52. Ibid. at 117.

53. Fineman, “Custody Determination”, supra note 10.

54. Ibid. at 99. Ironically, it is the same feminists who support more stringent maintenance enforcement programs which, particularly in the United States, but also in Canada, are focusing on establishing paternity in order to legally hold responsible biological fathers for financial support.

55. Boyd, “Child Custody, Ideologies and Employment”, supra note 46 at 133.

56. Ibid.

57. Fineman, “Custody Determination”, supra note 10 at 98.

58. In her paper, “Potentialities and Perils of the Primary Caregiver Presumption,” Boyd examines several arguments against the primary caregiver presumption (supra note 46). Most of these deal with disputes about the psychological importance to children of a primary caregiver and loss of same to a secondary caregiver. The question of judicial capacity to assess the evidence is also examined. While Boyd concedes that the primary caregiver presumption cannot solve all the problems that attend custody disputes and the limits of legal reform are acknowledged, the primary caregiver presumption is nevertheless endorsed as a way of using the law to recognize current parenting patterns.

59. Fineman, supra note 3 at 730. Whereas Fineman is discussing the situation in the United States, she is frequently quoted by leading Canadian feminist-legal scholars to substantiate their critique of the “best interests of the child” principle as it operates in Canada.

60. Boyd, “Child Custody, Ideologies and Employment”, supra note 46 at 113.

61. Boyd, “Child Custody and Working Mothers”, supra note 46 at 169.

62. Ibid.

63. Department of Justice, supra note 13 at 104.

64. Lapierre, L., “Divorces, Canada and the Provinces, 1990” (1991) 3:4Health Reports 380Google ScholarPubMed.

65. Department of Justice, supra note 13 at 102.

66. Joint custody is associated with the ongoing “revolution” in the divorce process in which reforms in process (the use of mediation rather than litigation) are accompanied by a different outcome (joint rather than sole maternal custody).

67. Cf. Boyd, S., “‘She Wants to Have Her Cake and Eat it Too’: Child Custody Law and the Construction of Women's Work in Canada” (Lecture presented to the Feminist Institute for Studies on Law and Society, Simon Fraser University, 21 October 1992)Google Scholar; Boyd, “Child Custody, Ideologies and Employment, supra note 46; Boyd, “Investigating Gender Bias”, supra note 50; Fineman, “Dominant Discourse”, supra note 3; Fineman, “Custody Determination”, supra note 46.

68. Department of Justice, supra note 13 at 101.

69. Lapierre, supra note 64.

70. Department of Justice, supra note 13 at 82.

71. As Morton suggests, most feminist legal scholars involved in this debate are informed by radical feminist thought (supra note 6). Although Susan Boyd and Judy Fudge are exceptions to this categorization, the argument Boyd presents in defence of the primary caregiver presumption shares much ground with radical feminist thinking.

72. Boyd, supra note 67. Here Boyd is in fact echoing the sentiments of Julia Brophy who argued that it “is beyond the scope of family law radically to transform structural differences in child care.” Brophy, supra note 50. This is a position that Boyd endorsed in her 1990 article, “Potentialities and Perils of the Primary Caregiver Presumption”, supra note 46.

73. Another problem with the primary caregiver presumption is that, ironically, even though the principle of gender neutrality is criticized strongly, the primary caregiver presumption is promoted as a gender neutral rule because it does not “prefer” one gender over the other. See Smart, supra note 46 at 24; Boyd, “Child Custody, Ideologies and Employment”, supra note 46; Fineman, supra note 46; Brophy, ibid. Boyd, for example, argues that the primary caregiver principle will give greater profile to the economic plight of caregivers and will signify recognition of “basic feminist goals (equality through gender neutrality) …”, Boyd, “Child Custody, Ideologies and Employment” Ibid. at 124. That the primary caregiver presumption is not a gender neutral proposal is more readily proclaimed by Mary Becker (Professor of Law, Chicago) who advocates dropping the pretence of the primary caregiver presumption altogether and renaming it the maternal deference standard. Canadian feminist legal scholars are at pains, however, to retain the primary caregiver presumption label and defend it as a gender neutral standard. In part, this stems from the fact that adoption of an explicit maternal deference standard would be in breach of the Canadian Charter of Rights and Freedoms.

74. Monture, P., “A Vicious Circle: Child Welfare and the First Nations” (1989) 3:1C.J.W.L. 1Google Scholar.

75. The recent custody dispute over David, foster child of the Tearoes, a “middle class”, white, Victoria, B.C. couple, and natural child of Cecilia Sawan, a young single native “grade 10 drop-out” living in Northern Alberta, poignantly demonstrates this fact. Although Sawan gave up David for adoption a few months after his birth, she soon changed her mind, within the time period allowed by Alberta Family and Social Services. But Sawan, unable to get the agency to return her son when she requested, began legal proceedings in the fall of 1992. Although the British Columbia Supreme Court ordered David to be returned to his natural mother in June 1993 (an order the Tearoes defied), in August, the British Columbia Court of Appeal overturned the Supreme Court ruling and ordered that he remain with the Tearoes.

76. L. Gordon, supra note 47 at 182.

77. Ehrensaft, D., “When Women and Men Mother” (1983) 49 Socialist Review 48Google Scholar.

78. Boyd, “From Gender Specificity to Gender Neutrality”, supra note 46; Boyd, “Child Custody, Ideologies and Employment”, supra note 46.

79. Cf. Gordon, J., “Multiple Meanings of Equality: A Case Study in Custody Litigation” (1989) 3:1C.J.W.L. 256Google Scholar; Faulkner, E., “The Case of ‘Baby M’” (1989) 3:1C.J.W.L. 239Google Scholar; Chesler, P., Mothers on Trial (New York: McGraw Hill, 1991)Google Scholar; Taylor, G., In Whose Best Interests? A Working Report on Women's Experiences in Custody and Access Disputes (B.C. Ministry of Women's Equality, 1992)Google Scholar.

80. Fineman, for example, uses the terms interchangeably, supra note 3.

81. True shared parenting would, of course, require a fundamental restructuring of our economy as Segal suggests, and a very different, and lower, standard of living among such families. But divorce occasions a lower standard of living anyway, for most women and many men, unless or until remarriage. Segal, L., Is the Future Female? Trouble Thoughts on Contemporary Feminism (London: Virago Press, 1987)Google Scholar.

82. Another problem with the emphasis on the primary caregiver presumption as the answer to custodial mothers' problems, is that this solution is silent about the situation of custodial mothers where there is abuse, and the rights of abusive fathers to access. Whereas a minority of abusive husbands or fathers may obtain sole or joint custody, the majority are non-custodial and continue their abuse through their rights to visit the children.

83. Boyd, supra note 67.

84. Walker, supra note 4 at 108.

85. L.Gordon, supra note 47 at 187–88.

86. Ibid. at 188.

87. Peters, H. E. et al. , “Enforcing Divorce Settlements: Evidence from Child Support Compliance and Awaid Modifications” (1993) 30:4Demography 719CrossRefGoogle ScholarPubMed.