Parental Equality When Parenting Isn't Equal

Susan Boyd (British Columbia), “Equality: An Uncomfortable Fit in Parenting Law”, in Robert Leckey, ed., After Legal Equality: Family, Sex, Kinship (Routledge 2015), 42-58

Since the second wave of the women’s movement and the emergence of the fathers’ rights movement in the 1970s and 1980s, family law has moved towards formal legal equality and gender-neutral language. Early liberal feminists were optimistic about involving men as equal partners and parents and were keen to remove gender-based legal assumptions. Fathers’ rights advocates lobbied for equal or joint custody norms and for mothers to have equal financial responsibilities, in order to redress what was and still is perceived as discrimination against men. In most modern family laws, male and female spouses now owe reciprocal duties of financial support and disputes over children are determined by a child’s best interests, rather than by assumptions based on gender. More recently, this gender-neutral language has accommodated the reality of same-sex partnerships and same-sex parenting.

 

These gender-neutral legal norms, however, sit uncomfortably next to familial realities that remain stubbornly gendered and unequal in certain respects, particularly because women still assume greater responsibility for domestic labour and childcare. Many feminists challenge calls for equal treatment of fathers and instead propose legal norms that recognize these unequal social relations. Even if the legal norms are gender-neutral on their face, they should include guidelines that direct attention to gendered patterns or they should be interpreted so as to take account of gendered social realities still supported by social and economic structures. For instance, spousal support law should take account of the patterns of domestic labour in the family at issue. As for child custody, norms should direct attention to whether one parent has taken primary care responsibility for a child and whether domestic abuse is a factor (e.g. Boyd 2002; Shaffer and Bala 2003).

 

This chapter uses laws on parenthood to study the contradiction between the trend towards formal equality and ongoing gendered patterns of care, as well as the growing phenomenon of parenting by lesbians and by gay men and by single mothers by choice, by which a woman plans to be a child’s sole parent. Specifically, it assesses the innovative potential of the new Family Law Act (FLA)1 in the Canadian province of British Columbia, which redefines legal parenthood and alters the regulation of post-separation parenting. The new definitions of legal parenthood respond to calls for the recognition of same-sex parenting and reproductive technologies. The new norms on post-separation parenting respond to calls for equal treatment of fathers, but they also take account of research on the troubling impact of shared parenting law reforms regulating post-separation disputes over children. As such, the FLA arguably eschews strict formal equality.