By Caroline Lepage for CBA National Magazine
Our neighbors are fighting for the right to abortion. Young women get advice on the art of being the perfect wife to a providing husband. Elsewhere, they are fighting for their right to educate themselves, or even to have a visible and public existence.
No, I'm not talking about the 1960s, but about 2024. Between the overturning of Roe v. Wade in the United States, the trend which is gaining popularity on social networks of tradwives (traditional wives) and the attacks on the fundamental rights of women which seem to be increasing both in the context of armed conflicts and dictatorships, there are what to wonder if International Women's Rights Day will soon be canceled for lack of purpose! However, International Women's Day must be highlighted in Quebec, even if the situation of women is currently better here.
From a formal point of view, the charters prohibit discrimination on the basis of sex or gender identity. Labor law provides specific protections prohibiting dismissal for reasons of pregnancy or the exercise of rights provided for by labor standards, including maternity leave. However, in reality, the salary and wealth gap between men and women remains. The Canadian Bar Association was also interested in the question of this gap in the specific context of the legal professions in a report in 2022. Harvard University professor and doctor of economics Claudia Goldin received the Nobel Prize of the economy in 2023 for his work which demonstrates in particular that maternity was the determining factor explaining this phenomenon.
Civil law and criminal law increasingly recognize certain forms of domestic violence which benefited from relative impunity until very recently, including coercive control and judicial violence. Amendments were made to the law in June 2023. These allow, among other things, the parent who is a victim of domestic violence to consent without the other parent to certain care that the child may need in a context of family, marital or domestic violence. sexual. The theory of parental alienation, the preferred tool of violent spouses to deprive their victim of a concrete means of protecting their child, is the subject of a healthy questioning. This is, as a whole, news that gives hope through the darker picture painted earlier. If having children still harms mothers economically, we can at least welcome the fact that the law recognizes that the use of children in an unhealthy dynamic of domestic violence exists and must be minimized.
However, who says law, says expenses to exercise them and have them recognized before the courts. Hence, precisely, the direct interrelation between women's rights and their economic situation. Family law has a direct impact on it. From the 1980s to the early 1990s, significant efforts were made by legislators to promote economic equality — or, at a minimum, a form of equity — within couples. The use of compensatory benefits and family assets clearly illustrate these efforts. The problem, concretely, is that these measures then targeted and still target a majority of couples who have become a minority over time, i.e. married couples.
Since the highly publicized case of Eric against Lola, decided in 2013 by the Supreme Court, the legislator has not come to rectify the legal inequality in which economically disadvantaged de facto spouses find themselves compared to married spouses, who benefit protective measures. In the name of individual freedom, the State leaves de facto spouses without the slightest legal obligation towards each other. However, in the name of public order, it prohibits married spouses from framing their relationship by mutual obligations less than a sharing of certain property (family patrimony) and the maintenance obligation between spouses - i.e. an obligation during and after marriage according to which the essential needs of the spouses are ensured by the economic union that they form or have formed.
While it is true that spouses sometimes arrive at a choice to marry or not that is made freely and with full knowledge of the facts, certain caveats must be made. On the one hand, doubt remains as to whether economically disadvantaged common-law partners — generally women — actually choose common-law unions without undue pressure from their spouses and are sufficiently aware of the protections offered by the law to married couples so that this decision be considered. On the other hand, without a doubt, the couple's children have nothing to say about the choice of de facto union and its impact on the protection of the economically disadvantaged parent. However, the latter – generally, the mother – will often have a greater share of parental time in the event of dissolution of the union. It's hard to deny that his living conditions and financial problems will have a direct impact on them. Reform is therefore expected in this area.
All things considered, as a woman, I consider myself lucky to be in Quebec at a time when the efforts of entire generations of pioneers bear fruit that is unfortunately taken for granted. Looking at the state of the rest of the world, and as Simone de Beauvoir saw it coming, setbacks are possible and happening. Would this not be an opportunity to position Quebec civil law as model legislation in terms of women's rights? To take up the idea put forward by Emma Watson at the launch of the United Nations “He for She” campaign in 2014, this requires having a more inclusive approach to demands for the right to equality on the basis of sex. or gender, particularly with regard to issues related to parenthood which are far from exclusively concerning women.
After all, real sex and gender equality is intended to benefit the entire population.
Caroline Lepage is a notary, doctoral student and member of the Women Lawyers Forum of the CBA's Quebec branch.