1. Judicial decision-making in family law has been relatively immune from Charter challenges per se: Toope, S. J., “Riding the Fences: Courts, Charter Rights and Family Law” (1991) 9 Can. J. Fam. L. 55Google Scholar. Steel, F. & Gilson, K., “Equality Issues in Family Law: A Discussion Paper” in Busby, Karen et al. , eds., Equality Issues in Family Law (Winnipeg: Legal Research Institute of the University of Manitoba, 1990) 21 at 51–52Google Scholar, say that Charter arguments in the family law area are not being litigated primarily for and on behalf of women, but rather for men and children. Some cross-over effect of the Charter on family law has been evident as the Women's Legal Education and Action Fund [hereinafter LEAF] and feminist equality theory gained a stronger voice in other legal fields. For the development of LEAF's voice, especially in the earlier years, see Razack, S., Canadian Feminism and the Law: The Women's Legal Education and Action Fund and the Pursuit of Equality (Toronto: Second Story Press, 1991)Google Scholar. See also Brodsky, G. & Day, S., Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of Women, 1989)Google Scholar for a more critical account of Charter litigation during roughly the same period. See also Duclos, N., “Feminism Goes to Law School: A Review of Sherene Razack, 1991, Canadian Feminism and the Law” (1992) 4:1Journal of Human Justice 89 at 93–94CrossRefGoogle Scholar.

2. Although increased regulation of “family breakdown” characterizes the past decade of family law reform, the opportunity to opt out of the legal regime through contractual arrangements remains very available. As M. Bailey has said: “Modern family law seems to be a quintessential expression of this schizophrenia [between government intervention and liberty] because it seems to create a near-comprehensive scheme for marriage dissolution, yet simultaneously gives the parties freedom to disregard it and fashion their own scheme” (“Unpacking the ‘Rational Alternative’: A Critical Review of Family Mediation Movement Claims” (1989) 8 Can. J. Fam. L. 61 at 91)Google Scholar.

3. See Busby et al., eds., supra note 1.

4. See Chunn, D., “Feminism, Law and Public Policy: ‘Politicizing the Personal’” in Mandell, N. & Duffy, A., eds., Reconstructing Canadian Families: Race, Class, Gender and Sexuality (Toronto: Butterworths, forthcoming)Google Scholar.

5. Murdoch v. Murdoch, [1975] 1 S.C.R. 423.

6. See Abner, E., Mossman, M. J. & Pickett, E., “No More Than Simple Justice: Assessing the Royal Commission Report on Women, Poverty and the Family” (1990) 22 Ottawa Law Journal 573Google Scholar; Boyd, S. B., “Child Custody Law and the Invisibility of Women's Work” (1989) 96 Queen's Quarterly 831Google Scholar; Cossman, B., “A Matter of Difference: Domestic Contracts and Gender Equity” (1990) 28 Osgoode Hall L.J. 303Google Scholar; Morton, M. E., “Dividing the Wealth, Sharing the Poverty: The (Re)formation of ‘Family’ in Ontario” (1988) 25 Canadian Review of Sociology and Anthropology 254CrossRefGoogle Scholar; Rogerson, C. J., “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)” (1990) 7 Canadian Family Law Quarterly 155Google Scholar. Also see, generally, Fineman, M. Albertson, The Illusion of Equality: The Rhetoric and Reality of Divorce Reform (Chicago & London: University of Chicago Press, 1991)Google Scholar.

7. See Mossman, M. J. & MacLean, M., “Family Law and Social Welfare: Toward a New Equality” (1986) 5 Can. J. Fam. L. 79Google Scholar; Ursel, J., Private Lives, Public Policy: 100 Years of State Intervention in the Family (Toronto: Women's Press, 1992)Google Scholar; Abner, Mossman & Pickett, supra note 7; Chunn, supra note 4; Boyd, supra note 6; Morton, supra note 6.

8. I am grateful to Nitya Iyer for clarifying this point.

9. See Holland, W., “Cohabitation and Marriage—A Meeting at the Crossroads?” (1990) 7 Canadian Family Law Quarterly 31Google Scholar.

10. See Duclos, N., “Breaking the Dependency Circle: The Family Law Act Reconsidered” (1987) 45 U. T. Fac. L. Rev. 1 at 16Google Scholar. Duclos (Iyer) argues that this exception can be explained by the fact that there can be no presumption of implicit intention to divide family property equally where there is no marriage. In support law, on the other hand, the principles of unjust enrichment and the public interest justify support award for at least some unmarried cohabitants.

11. As this article goes to press, there are signs that this may change in Ontario at least. The Ontario Law Reform Commission Report on the Rights and Responsibilities of Cohabitants Under the Family Law Act (1993)Google Scholar recommends that unmarried heterosexual spouses have the same rights and responsibilities as married spouses in the Family Law Act, R.S.O. 1990, c. F–3Google Scholar. Holland, supra note 9 canvasses the debates over this type of initiative to assimilate unmarried and married couples.

12. Turpel, M. E., “Home/Land” (1991) 10 Can. J. Fam. L. 17Google Scholar.

13. Anderson v. Luoma (1986), 50 R.F.L. (2d) 127 (B.C.C.A.). Note however that the Ontario Law Reform Commission report, supra note 11 recommends that same-sex couples be permitted to become Registered Domestic Partners upon filing a witnessed and signed registration form, and that Registered Domestic Partners have all rights and obligations available to “spouses” under the Family Law Act, R.S.O. 1990, c. F–3Google Scholar. For discussion of the debates over integrating same-sex couples into “family” regimes, see Cossman, B., “Family Inside/Out” (1994) 44 U.T.L.J. (forthcoming)CrossRefGoogle Scholar; Gavigan, S., “Paradise Lost, Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian and Gay Engagement with Law” (1993) 31 Osgoode Hall L.J. (forthcoming)Google Scholar; Herman, D., “Are We Family? Lesbian Rights and Women's Liberation” (1990) 28 Osgoode Hall L.J. 789Google Scholar. See also Cossman, B. & Ryder, B., Gay, Lesbian and Unmarried Heterosexual Couples and the Family Law Act: Accommodating a Diversity of Family Forms (Research paper prepared for the Ontario Law Reform Commission, June 1993)Google Scholar.

14. Ibid.; Forrest v. Price (3 November 1992), Vancouver Registry C913542 (B.C.S.C). See also “Judge Finds Constructive Trust to Compensate Gay Partner”, The Lawyers Weekly (12 June 1992)Google Scholar, describing Brunei v. Davis, a decision of the Ontario Court (General Division) by Justice R.B. Warren, using unjust enrichment and constructive trust.

15. Note however that in Forrest v. Price, ibid., the fact that bank accounts were not joint was not held against the man who was claiming a share in his partner's property. The judge accepted the plaintiff's testimony that they did not register as joint owners of their real estate because the defendant was a child psychiatrist and felt that coming out would “prove prejudicial to his career.” But in other respects, the judge adhered to a very traditional view of “family” even in the context of this gay male couple: “I am satisfied … that throughout this relationship the parties assumed the classic roles and division of labour characteristic of many traditional heterosexual marriages … The plaintiff worked hard, devoting hours to the development of the properties, the defendant's career, and overseeing his general health and welfare … The parties fulfilled their traditional roles as homemaker and breadwinner.”

16. Minow, M. critically engages with these arguments in “‘Forming Underneath Everything That Grows’: Toward a History of Family Law” (1985) Wisconsin Law Review 819Google Scholar.

17. This point may be illustrated by the fact that Razack, supra note 1, refers to Shelley Gavigan as a postmodernist feminist author and holds her work up as an example of some of the strengths of postmodernist work in terms of historical specificity, etc. Yet Gavigan herself eschews the categorization of “postmodernist” and would locate herself within a socialist feminist tradition. See Gavigan, supra note 13.

18. Cooper, D. & Herman, D., “Getting ‘the Family Right’: Legislating Heterosexuality in Britain, 1986-1991” (1991) 10 Can. J. Fam. L. 41Google Scholar. This idea is explored by looking at discourses on black women, lesbians, and white women as mothers; on joint custody; and on primary caregi ving in Boyd, S. B., “Some Postmodernist Challenges to Feminist Analyses of Law, Family and State: Ideology and Discourse in Child Custody Law” (1991) 10 Can. J. Fam. L. 79Google Scholar.

19. Pringle, R. & Watson, S., “Fathers, Brothers, Mates: The Fraternal State in Australia” in Watson, S., ed., Playing the State: Australian Feminist Interventions (London: Verso, 1990) 229 at 239Google Scholar.

20. Despite MacKinnon's, C. A. view that “[f]eminism has not confronted, on its own terms, the relation between state and society within a theory of social determination specific to sex” in Toward a Feminist Theory of the State (Harvard: Harvard University Press, 1989) at 159Google Scholar, feminist work from perhaps a more Marxian tradition than MacKinnon would favour has helpfully explored the contradictions and fissures within that entity that we call, in a form of shorthand, “the state”. See for example Gavigan, S. A. M., “Morgentaler and Beyond: Abortion, Reproduction, and the Courts” in Brodie, J., Gavigan, S. A. M. & Jenson, J., The Politics of Abortion (Toronto: Oxford University Press, 1992) 118 at 118–22Google Scholar; Ursel, supra note 7; Fudge, J. “The Privatization of the Costs of Social Reproduction: Some Recent Charter Cases” (1989) 3:1C.J.W.L. 246Google Scholar.

21. See Chunn, D., From Punishment to Doing Good: Family Courts and Socialized Justice in Ontario 1880-1940 (Toronto: University of Toronto Press, 1992)Google Scholar; Ursel, supra note 7.

22. See for example Brodie, Gavigan & Jenson, supra note 20.

23. J. Fudge points to the need to be specific about which kinds of groups are trying to use laws for progressive ends, and which types of law are involved, in “What Do We Mean by Law and Social Transformation?” (1990) 5 Canadian Journal of Law and Society 47CrossRefGoogle Scholar. For example, the operations of property and contract law may be somewhat distinct from those of the equality guarantees in the Canadian Charter of Rights and Freedoms, but they have an important relationship to one another, for instance in the way that many private property and contract relationships are insulated from Charter scrutiny. Much of family law has as yet been untouched by the impact of the Charter of Rights and Freedoms, in part due to the wide judicial discretion inherent in many areas. See supra note 1. This phenomenon is not necessarily negative, given the problems women have experienced in the family field with equality discourse.

24. See Watson, ed., supra note 19; Elliot, F. Robertson, ‘The Family: Private Arena or Adjunct of the State?” (1989) 16:4Journal of Law and Society 443CrossRefGoogle Scholar; Smart, C., Feminism and the Power of Law (London: Routledge, 1989)CrossRefGoogle Scholar. See Comack, E., Feminist Engagement With the Law: The Legal Recognition of the Battered Woman Syndrome (Ottawa: Canadian Research Institute for the Advancement of Women, 1993) at 6–16Google Scholar for an accessible short account of these developments from a socialist feminist perspective.

25. See for example Smart, C., The Ties That Bind: Law, Marriage and the Reproduction of Patriarchal Relations (London: Routledge &Kegan Paul, 1984)Google Scholar; Brophy, J. & Smart, C., eds., Women in Law: Explorations in Law, Family and Sexuality (London: Routledge & KeganPaul, 1985)Google Scholar; Gavigan, S. A. M., “Women and Abortion in Canada: What's Law Got to Do With It?” in Maroney, H. J. & Luxton, M., eds., Feminism and Political Economy: Women's Work, Women's Struggles (Toronto: Methuen, 1987) 263Google Scholar and “Women, Law and Patriarchal Relations: Perspectives Within the Sociology of Law” in Boyd, N., ed., The Social Dimensions of Law (Scarborough: Prentice-Hall Canada, 1986) 101Google Scholar.

26. This phenomenon has occurred despite another strand of radical feminist thought which is informed by (lesbian) separatism and which distances itself from engagement with law and other reformist institutions due to their patriarchal nature, preferring to put energy into women-centred projects. See Jaggar, A. M., Feminist Politics and Human Nature (Totowa, N.J.: Rowman & Allanheld, 1983) c. 5, c. 9Google Scholar. See also Cruikshank, M., The Gay and Lesbian Liberation Movement (New York & London: Routledge, 1992) at 159–60Google Scholar. From a different angle, Suzanne Gibson explores the different contexts of feminist legal engagement in England and the United States, noting the more socialist underpinnings of English legal feminism, as opposed to the greater faith in law manifested even by radical feminists in the United States. She argues that the different political contexts of each country dictate against the indiscriminate importation of American legal feminism to England. A similar analysis could well be applied to Canada. See Gibson, S., “Continental Drift: The Question of Context in Feminist Jurisprudence” (1990) 1 Law and Critique 173Google Scholar.

27. Razack, supra note 1.

28. See Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252 and Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219.

29. See Bartholomew, A., “‘AchievingaPlace for Women in a Man's World’: Or, Feminism With No Class” (1993) 6:2C.J.W.L. (forthcoming)Google Scholar; Comack, supra note 24; Fudge, J., “The Public/Private Distinction: The Possibilities of and Limits to the Use of Charter Litigation to Further Feminist Struggles” (1987) 25 Osgoode Hall L.J. 485Google Scholar; Snider, L., “The Potential of the Criminal Justice System to Promote Feminist Concerns” (1990) 10 Studies in Law, Politics and Society 143Google Scholar; “Feminism, Punishment and the Potential of Empowerment” (1994) 9:1Canadian Journal of Law and SocietyGoogle Scholar. Authors such as these have pointed out that, among other problems, many feminist legal victories may benefit primarily middle-class white women, if indeed they benefit anyone who is a client of the system at all. For a very strong criticism of the “rights” strategy along these lines, see Fudge, J. & Glasbeek, H., “The Politics of Rights: A Politics with Little Class” (1992) 1:1Social and Legal Studies 45CrossRefGoogle Scholar. On socialist feminist legal approaches generally, see Gavigan, supra note 13.

30. Smart, C., “Feminism and the Law: Some Problems of Analysis and Strategy” (1987) 14 International Journal of Sociology and Law 109Google Scholar.

31. See Pringle, R., “Book Review of Feminism and the Power of Law by Carol Smart” (1990) 18:2International Journal of Society and Law 229 at 231Google Scholar, raising the possibility that Smart underestimates the effectiveness of radical feminist strategies in the U.S.A.

32. See Harris, A., “Review Essay of Categorical Discourse and Dominance Theory: Toward a Feminist Theory of the State by Catharine A. MacKinnon” (1990) 5 Berkeley Women's Law Journal 181Google Scholar; Razack, S., “‘Speaking for Ourselves’: Feminist Jurisprudence and Minority Women” (1991) 4:2C.J.W.L. 440Google Scholar and “Exploring the Omissions and Silences in Law Around Race” in Brockman, J. & Chunn, D., eds., Investigating Gender Bias: Law, Courts, and the Legal Profession (Toronto: Thompson Educational Publishing, 1993) 37Google Scholar; Turpel, M. E., “Patriarchy and Paternalism: The Legacy of the Canadian State for First Nations Women” (1993) 6 C.J.W.L. 174Google Scholar.

33. Watson, ed., supra note 19. See also Pringle, R. & Watson, S.,“‘Women's Interests’ and the Post-Structuralist State” in Barrett, M. & Phillips, A., eds., Destabilizing Theory: Contemporary Feminist Debates (Cambridge: Polity Press, 1992) 53Google Scholar.

34. S. Watson, “The State of Play: An Introduction” in S. Watson, ed., supra note 19 at 3; Pringle & Watson, supra note 19 at 229.

35. MacKinnon, C. A., Feminism Unmodified (London: Harvard University Press, 1987)Google Scholar and supra note 20.

36. Watson, supra note 34 at 6–7. For a slightly different critical engagement with these theories, see Randall, M., “Feminism and the State: Questions for Theory and Practice” (1988) 17:3Feminist Perspectives on the Canadian State 10Google Scholar.

37. Watson, ibid., at 7-8.

38. Ibid., at 8. See also Cooper, D., “An Engaged State: Sexuality, Governance, and the Potential for Change” (1993) 20:3Journal of Law and Society 257CrossRefGoogle Scholar for a thoughtful analysis of this line of argument in the context of sexuality.

39. Pringle & Watson, supra note 19 at 233; see also Rose, N., “Beyond the Public/Private Division: Law, Power and the Family” in Fitzpatrick, P. & Hunt, A., eds., Critical Legal Studies (Oxford: Basil Blackwell, 1987) 67Google Scholar.

40. For example, Foucault, M., Discipline and Punish: The Birth of the Prison (New York: Vintage Books, 1979)Google Scholar; The History of Sexuality, Volume I, An Introduction (New York: Pantheon Books, 1978)Google Scholar; Gordon, C., ed., Power/Knowledge: Selected Interviews, 1972-77 (Brighton: Harvester Press, 1980)Google Scholar. For applications to law, see for example Hunt, A., “The Big Fear: Law Confronts Postmodernism” (1990) 35 McGill L.J. 507Google Scholar; Fitzpatrick, P., “‘The Desperate Vacuum’: Imperialism and Law in the Experience of Enlightenment” in Carty, A., ed., Post-Modern Law: Enlightenment, Revolution and the Death of Man (Edinburgh: Edinburgh University Press, 1990) 90Google Scholar; Turkel, G., “Michel Foucault: Law, Power, and Knowledge” (1990) 17 Journal of Law and Society 170CrossRefGoogle Scholar; Rose, ibid. And see feminist sources, infra note 42.

41. Peterson, H., “On Women and Legal Concepts: Informal Law and the Norm of Consideration” (1992) 1 Social and Legal Studies 493CrossRefGoogle Scholar; Fitzpatrick, P., “The Rise andRise of Informalism” in Matthews, R., ed., Informal Justice (London: Sage, 1988)Google Scholar.

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44. See Peterson, supra note 41, who looks at some of the trends known as “legal pluralism” and “informal law” as well as at postmodernism.

45. Socialist feminists have been critical of the essentialist tendencies within radical feminism, potentially opening more space for analysis of the various factors shaping women's lives beyond their “femaleness”. But see Williams, T., “Re-Forming ‘Women's’ Truth: A Critique of the Report of the Royal Commission on the Status of Women in Canada” (1990) 22 Ottawa L. Rev. 725Google Scholar, pointing out that this potential has not often been realized.

In speaking of “black feminists” I am of necessity simplifying a complex category of feminist authors and activists, who vary themselves along lines of theoretical persuasion in terms of the weight they would accord to class, analyses of the state, sexuality, and soon.

46. See, for example, Bhavnani, K.-K. & Coulson, M., “Transforming Socialist-Feminism: The Challenge of Racism” (1986) 23 Feminist Review 81CrossRefGoogle Scholar; Cox, C., “Anything Less is Not Feminism: Racial Difference and the W.M.W.M.” (1990) 1:2 Law and Critique 237CrossRefGoogle Scholar.

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48. Ibid.; see also Barrett, M. & McIntosh, M, The Anti-Social Family, 2d ed. (London: Verso, 1991), “Postscript” at 164–68Google Scholar.

49. Olsen, F., “The Family and the Market: A Study of Ideology and Legal Reform” (1983) 96 Harvard Law Review 1497CrossRefGoogle Scholar; Freeman, M., “Towards a Critical Theory of Family Law” (1985) 38 Current Legal Problems 153CrossRefGoogle Scholar; and O'Donovan, K., Sexual Divisions of Law (London: Weidenfeld & Nicolson, 1985)Google Scholar.

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52. See Cox, supra note 46; Bhavnani & Coulson, supra note 46 at 84, 88–89.

53. See Robson, R., “Lavender Bruises: Intra-Lesbian Violence, Law and Lesbian Legal Theory” (1990) 20 Golden Gate University Law Review 567Google Scholar; Ristock, J. L., “Beyond Ideologies: Understanding Violence in Lesbian Relationships” (1991) 12:1Canadian Woman Studies 74Google Scholar.

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55. See Eagleton, T., Ideology: An Introduction (London: Verso, 1991)Google Scholar.

56. See, for example, Herman, D., Rights of Passage: Struggles for Lesbian and Gay Legal Equality (Toronto: University of Toronto Press, forthcoming)Google Scholar and “Beyond the Rights Debate” (1993) 2 Social and Legal Studies 25CrossRefGoogle Scholar for good examples of this type of work. See also Nicholson, L. J., ed., Feminism/Postmodernism (New York & London: Routledge, 1990)Google Scholar and Cooper, supra note 38.

57. Rose, supra note 39 at 61–62.

58. Hunt, A. makes this point in “Living Dangerously on the Deconstructive Edge, book review of Dwelling on the Thresholdby Allan Hutchinson” (1989) 26 Osgoode Hall L.J. 868 at 890–91Google Scholar.

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63. Olsen, F., “The Myth of State Intervention in the Family” (1985) 18 University of Michigan Journal of Law Reform 835Google Scholar points out clearly that even when the state appears not to intervene or to be active, it has an effect in areas of life perceived to be “private”.

64. Ursel, supra note 7. See also Pupo, N., “Preserving Patriarchy: Women, the Family, and the State” in Mandell, N. & Duffy, A., eds., Reconstructing the Canadian Family: Feminist Perspectives (Toronto: Butterworth's, 1988) 207Google Scholar

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68. Robertson Elliot, supra note 24 at 458, says the following: “the educative process that Donzelot describes seems to have a remarkable degree of coherence, even though it is mobilized by a wide range of groups. This raises questions as to what gives the regulation of family life the coherence it is presumed to have. Furthermore, its coherence and pervasiveness would seem to make it as coercive as the ideological indoctrination of much Marxist, Marxist-feminist and radical-feminist theorizing … Donzelot neglects the question of the effectivity of policy interventions in the family. As a result his account reads as though policies operate smoothly and aims of policy are always realized.” Barrett & Mclntosh make a similar point, supra note 48.

69. See Robertson Elliot, ibid.

70. See, for example, Eisenstein, Smart, Weedon, supra note 42; Frag, M. Jo, Postmodern Legal Feminism (New York & London: Routledge, 1992)Google Scholar.

71. Oddly, Carol Smart has a tendency to do this in her recent work, despite her earlier insights concerning, for instance, the uneven development of law in Smart, supra note 30.

72. See J. Allen, “Does Feminism Need a Theory of ‘The State’?” in S. Watson, ed., supra note 19 at 21; Randall, supra note 36. Both authors deconstruct “the state” while leaving “law” relatively intact.

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74. See also Smart, supra note 30.

75. Rose, supra note 39 at 66.

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79. Pringle & Watson, ibid., at 232.

80. Contrast Chunn, supra note 4.

81. Pringle & Watson, supra note 19 at 230.

82. Ibid., at 229.

83. See, for example, Robertson Elliot, supra note 24.

84. See Cooper & Herman, supra note 18; Boyd, supra note 18; Cooper, supra note 38.

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86. Pringle & Watson, supra note 19.

87. Ibid., at 238.

88. Ibid.

89. Ursel, supra note 7; Mossman & MacLean, supra note 7.

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92. See Ursel, supra note 7.

93. Fudge, supra notes 20 and 29.

94. Barrett & McIntosh, supra note 48 at 171–72.

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99. Herman, supra note 56.

100. Anne Barron of the Faculty of Law, University College, London clarified this thought for me.

101. Young, A., “Book Review of Dwelling on the Threshold: Critical Essays on Modern Legal Thought by Allan C. Hutchinson and Law, Fact and Narrative Coherence” by Bernard S. Jackson (1990) 18 International Journal of Society and Law 214Google Scholar. There is a question, of course, pointed out to me by Wes Pue, whether any theory can tell us what comes next” in any absolute sense. Some may offer more potential than others, however.

102. Herman, D., “‘Sociologically Speaking’: Law, Sexuality and Social Change” (1991) 2:2Journal of Human Justice 57CrossRefGoogle Scholar. Clearly ideology is itself a contested concept and has been rejected by many due to confusion over its meaning and import. See Eagleton, supra note 55, and Pue, supra note 76. Although the alternative tool of “discourse” need not be thought of as neutral and can be used to explore power relations, I still maintain that keeping a concept of ideology in place alongside discourse assists in retaining a strong sense of the disparate power of different discourses as well as the function of powerful discourses: see Boyd. supra note 18.

103. Gavigan, supra note 98; Chunn, supra note 4.

104. Mahon, R., “Canadian Public Policy: The Unequal Structure of Representation” in Panitch, L.. ed., The Canadian State (Toronto: University of Toronto Press, 1977) 165Google Scholar.

105. Eisenstein, supra note 42 at 10.

106. See Watson, ed., supra note 19; S. Findlay, “Facing the State: The Politics of the Women's Movement Reconsidered” in H. J. Maroney & M. Luxton, eds., supra note 25 at 31; Findlay, S., “Feminist Struggles with the Canadian State: 1966-1988” (1988) 17:3Feminist Perspectives on the Canadian State 5Google Scholar.

107. Findlay, ibid., at 33.

108. For example by Smart, supra note 25.

109. I am grateful to Nitya Iyer for clarifying this point.

110. See Randall, supra note 36.

111. Ibid. at 14.

112. Gavigan, S. A. M., “No Man's Land?: Men's Interventions in Pregnancy and Abortion” (Paper presented at the Annual Meeting of the Canadian Law and Society Association, University of Victoria, B.C., 29 May –1 June 1990) [unpublished]Google Scholar.

113. See Fudge, supra notes 20 and 29.

114. On Thatcherite Britain, see Thomas, P. A., “The Nuclear Family, Ideology and Aids in the Thatcher Years” (1993) 1 Feminist Legal Studies 23CrossRefGoogle Scholar.

115. For instance, Professor Alison Diduckof the Faculty of Law, University of Manitoba, was co-counsel with Helena Orton for LEAF in the Moge case. Gwen Brodsky worked with feminist legal scholars such as Professors Nitya Iyer (Duclos) and Marlee Kline of the Faculty of Law, U.B.C., and Professor Shelley Gavigan of Osgoode Hall Law School in writing the factum for the intervention by the Egale coalition in the Mossop case at the Supreme Court of Canada.

116. Moge v. Moge (1992), 43 R.F.L. (3d) 345.

117. Peter v. Beblow (1993), 44 R.F.L. (3d) 329.

118. The youngest child was born in 1966 and was a university student at the time of appeal.

119. Supra note 116 at 382–88.

120. Supra note 117.

121. By “equality backlash” I am referring to the tendency of judges to interpret gender neutral family law provisions dedicated to the “equality” of women and men in a manner that ignores the ways in which social reality continues to be gendered for women. Applying “equal” or “neutral” rules to that gendered reality means that those who are unequal socially and economically—mainly women—will suffer. See Steel & Gilson and Brodsky & Day, supra note 1. Thus, expecting women to be economically as self-sufficient as men in a world which pays women less for the work they do is unrealistic and harsh. See for example Duclos, supra note 10; Morton, supra note 6.

122. Supra note 116 at 390.

123. Eichler, M., “The Limits of Family Law Reform or, The Privatization of Female and Child Poverty” (1990) 7 Can. J. Fam. L. 59Google Scholar.

124. Teghtsoonian, K., “Neo-Conservative Ideology and Opposition to Federal Regulation of Child Care Services in the United States and Canada” (1993) 26:1Canadian Journal of Political Science 97CrossRefGoogle Scholar. For evidence that privatized remedies particularly disadvantage black women and single mothers (not mutually exclusive categories of course) in the United States, and do not work particularly well for anyone, see Beller, A. H. and Graham, J. W., Small Change: The Economics of Child Support (Yale: Yale University Press, 1993)Google Scholar, reviewed by Pearson, J. in (1993) 3:10The Law and Politics Book Review (an electronic periodical)Google Scholar.

125. Only Ontario has eliminated the “spouse in the house” or “cohabitation” rule, and the rule replacing it is arguably little better. See Mossman & MacLean, supra note 7; Gavigan, supra note 13; E. Abner, The Merits of the Use of Constitutional Litigation to Unravel the Fabric of the Feminization of Poverty in Canada (LL.M. Thesis, York University, 1989)Google Scholar; Abner, Mossman & Pickett, supra note 6 at 600–01; Evans, supra note 90 at 185–87.

126. Finlay v. Canada (Minister of Finance), [1993] 1 S.C.R. 1080. Note however that La Forest, L'Heureux-Dubé, Cory, and McLachlin JJ. dissented.

127. Gavigan, supra note 13; Mossman & MacLean, supra note 7.

128. The tragic outcome of Pettkus v. Becker, [1980] 2 S.C.R. 834, the first Supreme Court of Canada case to use constructive trust doctrine to award a share of property to an unmarried (heterosexual) cohabitant, illustrates how procedural difficulties and resistance by a man ordered to pay compensation to a woman can defeat the purpose of the law. Rosa Becker's suicide note indicated that she was protesting against a legal system that denied her the fruits of her victory. See “Frustrating Legal System Drove Woman to Suicide, Friends Say,” The [Montreal] Gazette (11 November 1986)Google Scholar.

129. W. Holland has reservations but generally supports this reform direction, supra note 9 at 46–52.

130. Supra note 116 at 389-90.

131. Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.

132. Mossop v. Treasury Board of Canada (1989), 10 C.H.R.R. D/6054 (Can. Trib.). See Herman, supra note 102 for a discussion of Margrit Eichler's expert evidence.

133. Mossop, supra note 131 at 630.

134. Supra note 116 at 373.

135. Barrett & McIntosh, supra note 47.

136. See also Cossman, supra note 13; Gavigan, supra note 13.

137. Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 104 D.L.R. (4th) 214 (Ont. Ct. Gen. Div.) currently under appeal to the Ontario Court of Appeal, File No. C15711.

138. Ibid., at 233, 235.

139. Ibid., at 235. Sullivan, A., “Here Comes the Groom: A (Conservative) Case for Gay Marriage” New Republic (28 August 1989) 20Google Scholar makes the point that letting gays and lesbians marry fits well within the conservative economic agenda.

140. K. Farquhar raises this issue in his comment on Peter v. Beblow, Can. Bar Rev. (forthcoming). Nitya Duclos (Iyer) raises the wider political issues about whether assimilating to the current family law scheme, at least in the marriage context, is desirable for gays and lesbians in “Some Complicating Thoughts on Same-Sex Marriage” (1991) 1 Law and Sexuality 31Google Scholar.

141. Forrest v. Price (3 November 1992), Vancouver Registry C913542 (B.C.S.C). The men were described as having “assumed the classic roles and the division of labour characteristic of many traditional marriages”; their relationship was “tantamount in all respects to a traditional heterosexual marriage.” See also discussion, supra note 15. A division of property was ordered.

142. See P. Armstrong & H. Armstrong, “Looking Ahead: The Future of Women's Work” in H. J. Maroney & M. Luxton, eds., supra note 25 at 213; Armstrong & Armstrong, supra note 60; Burstyn, V. & Smith, D., Women, Class, Family and the State (Toronto: Garamond, 1985)Google Scholar.

143. See Fineman, supra note 6.

144. Boyd, S. B., “Child Custody, Ideologies and Employment” (1989) 3:1C.J.W.L. 111Google Scholar.

145. Evans, supra note 90 at 184 shows that in many cases women go on welfare for a relatively short period of time before obtaining paid work. This does not necessarily mean that they succeed in becoming economically independent or that they never return to welfare.

146. See Robson, R., Lesbian (Out)Law: Survival Under the Rule of Law (Ithaca, N.Y.: Firebrand Books, 1992)Google Scholar on the issue of domestication by the rule of law.

147. Eisenstein, supra note 42 at 12.

148. Obvious areas include contract, corporate and tax law, the traditionally “business law” areas. Given the importance of the taxation structure for subsidizing certain activities and penalizing others, its potential link to capitalist economic structures and gendered dynamics within those structures, goes far beyond issues such as whether currently allowable business deductions discriminate against self-employed women. See Claire Young's discussion of the Symes case heard by the Supreme Court of Canada in 1993 in “Childcare and the Charter: Privileging the Privileged” (1994) Review of Constitutional Studies (forthcoming)Google Scholar.

149. Fudge, J., “Reconceiving Employment Standards Legislation: Labour Law's Little Sister and the Feminization of Labour” (1991) 7 J.L. & Social Pol'y 73 at 81Google Scholar; Ursel, supra note 7 at 289–304.