Canadian Women's History: Women & the Law Notes

Introduction to Women & the Law

• Class 17 focuses on critical themes in Canadian women's history related to law, covering the time from 1919 to the present.

Historical Context of Marriage and Law

• Marriage historically viewed as a union where one party (the man) remains unchanged while the woman is transformed into a different social status.
  • Reflects long-standing patriarchal norms in matrimonial law.

Class Outline

• Part 1: Divorce Law Reform
• Part 2: Women Lawyers and Judges
• Part 3: The Charter of Rights and Freedoms

Key Legal Institutions in Canada

• Provincial and Territorial Courts
  • Handle crime, money, and family issues at the local level.
• Supreme Court of Canada
  • The highest court that reviews lower court decisions and enforces significant legal standards.

Important Legal Frameworks

• The Constitution Act (1867)
  • Foundational legal document outlining the powers of government and rights of individuals.
• The Indian Act (1876)
  • Governs matters related to Indigenous peoples, including their rights and obligations.
• French Civil Law
  • Specific legal system in Quebec requiring legislated laws.
• English Common Law
  • Prevails in most of Canada, based on judicial decisions and precedents.

Divorce Law Reform

• Pre-1968 Divorce Law
  • Permanent marriage viewed as essential for social stability. Divorce laws unchanged from 1867 to 1968, heavily influenced by British law such as the Matrimonial Causes Act of 1857.
• Options for Divorce Prior to 1968
  • Parliamentary Divorce: Obtained through the Canadian Senate.
  • Judicial Divorce: Court dissolution based on legal arguments.
• Main Ground for Divorce: Adultery, with problematic biases and difficulty proving misconduct as they reinforced sexism.

Reform Milestones

• 1968 Divorce Act: Introduced grounds for divorce beyond adultery, but still required proof of wrongdoing.
• 1985 Divorce Act: Allowed for 'No Fault' divorce, simplifying the process significantly by removing the need to prove fault.

Noteworthy Cases

• Murdoch v. Murdoch (1974): Important case that sparked national conversations about women's rights in property division post-divorce, affecting legislation like the 1979 Saskatchewan Matrimonial Property Act.

• A.G. of Can. V. Lavell—Isaac v. Bédard (1973): Challenged the discriminatory elements of the Indian Act; was pivotal in advocating for Indigenous women's legal rights.

Women Lawyers and Judges

• Clara Brett Martin (1897): First woman to gain a law degree in Canada, breaking gender obstacles in the legal field.
• Bertha Wilson: First female appointed to the Supreme Court of Canada, known for her influential rulings that shaped women's rights in law.

The Charter of Rights and Freedoms

• Historical Background: Post-WWII surge in human rights consciousness leading to UN's Universal Declaration of Human Rights in 1948.
• Canadian Bill of Rights (1960): Early attempt to embed human rights in national law.
• Section 15 - Equality Rights: guarantees equality under the law without discrimination.

Landmark Cases under the Charter

• Barbeau v. British Columbia (2001): Same-sex couples challenge restrictions on marriage based on Charter rights.
• Halpern v. Canada (AG) (2003): Significant case advancing the rights of same-sex couples, showcasing increased representation by women lawyers.

Key Changes in Women’s Legal Landscape

• Enhanced access to divorce for women.
• Growing representation of women in law professions, including as judges.
• Inclusion of gender as a category in the Charter of Rights and Freedoms.

Suggested Readings/Bibliography

• Recommended literature for further exploration includes works on early female legal figures, Indigenous women's rights history, and case studies in divorce law reforms.

• Titles such as "Judging Bertha Wilson" and studies on the historical impact of divorce laws provide in-depth insights into women's evolving roles within the Canadian legal system.