Book Review: Susan B. Boyd – Child Custody, Law, And Women’s Work

Book Review: Susan B. Boyd – Child Custody, Law, And Women’s Work
(Oxford University Press, 2002)

Child Custody, Law, and Women’s Work is an important book: for legislative policy makers, for judges and lawyers, and for women and men who want to understand the complex legal and social context of child custody and access in Canada.

Boyd’s book provides a detailed examination of child custody law in Canada. It starts by examining the history of legal principles of custody, principles which included a legal presumption of paternal custody in the 19th century, and which were only gradually revised to recognize the suitability of mothers to have custody of their children, particularly in the early 20th century. Boyd’s review of reported cases reveals these patterns of judicial decision-making and the ways that judicial language reflected implicit and gendered norms of “good” parenting. This historical analysis is important, not just to document the changes that occurred in the law of custody over time, but also because the history clearly demonstrates how legal principles have shifted in different social and economic contexts. Boyd’s efforts to incorporate data from sociological and other studies are significant, revealing how actual practices sometimes diverged from legislative principles, and how the rise of equality discourse in the 1970s and 1980s focussed so often on formal, rather than substantive, equality. As Boyd argues, this focus resulted in the rejection of the “tender years” doctrine (although, as Boyd notes, this doctrine had a number of limitations); but it also masked the significance of caregiving in determinations of custody and access. As a result, access rights expanded and custody rights diminished. In the words of Carol Smart, “caring about” children began to be equated with “caring for” them, with the former creating mostly (men’s) “rights” and the latter creating mostly (women’s) “responsibilities”(Smart: 1991). Yet, even though the practices were gendered, this problem was rendered almost invisible by a discourse of formal equality. In this context, Boyd’s book represents a major contribution, reassessing legal principles of custody and access in the “real life” circumstances of women and men who are parents.

This book is also useful for its national focus. In spite of some differences in the wording of provincial legislation prior to the first federal divorce legislation in 1968, her analysis demonstrates a remarkable consistency in decisions in various provincial jurisdictions, a situation which also reveals connections between legal and social contexts. The book is particularly interesting because it includes not only discussion of common law provinces, but also some references to the Civil Code of Qu├ębec in relation to both principles and interpretations. It also includes references to social science studies, particularly in Canada and the United States, a number of which confirm that men and women tend to succeed in litigated custody cases in about equal numbers. As Boyd argues, these “real life” circumstances belie the arguments often presented in the 1990s policy debates that courts have tended to favour women in custody awards. The research suggests that in cases which are settled by negotiation, by far the vast majority of cases, the parties agree that women should have custody and provide primary care to children.

Boyd’s analysis is most significant, in my view, for its detailed review of governmental policy proposals in the past decade. Focussing on three federal discussion papers and the work of related parliamentary committees since 1993, Boyd shows how the discourse of formal equality has erased the reality of women’s work of caring for children. Efforts to promote formal equality have resulted in gender neutral approaches, which have tended to ignore women’s care-giving responsibilities at the same time as they fail to take account of social and economic circumstances which continue to disadvantage women in the paid workforce: problems of pay equity, the lack of affordable child care, and shrinking resources for education and health care, all of which negatively impact on those with primary responsibilities for children. As Boyd astutely argues, however, recognition of a primary caregiver presumption in law would exacerbate women’s responsibilities without addressing the need for greater social supports for parents; thus, by itself, it does not offer a real solution for reforming the law of custody and access. Instead, law reform needs to recognize women’s actual responsibilities for caregiving, without reinforcing gendered expectations about their “natural” roles.

In addition, this book is especially significant because it provides an assessment of the results of “shared parenting” regimes, which were introduced in Australia and in the United Kingdom a few years ago. In reviewing legal decisions, sociological studies, and governmental policy assessments of these new regimes, Boyd demonstrates that the message is clear: “shared parenting” regimes (and the abandonment of legal concepts of custody and access) fail to achieve their objectives in contested cases. In non-contested cases, of course, parents may well agree to shared parenting arrangements (perhaps without much knowledge of the legal norms), so that the new legal principles add little, if anything, to family law dispute resolution. More worrying is that the evidence in Australia and the U.K. suggests that “shared parenting” principles have tended to exacerbate risks of continuing abuse and the exploitation of those in less powerful positions, frequently women. As research in the U.K. documented, “shared parenting” has been implemented as a de facto presumption in favour of ongoing parental contact, so that “potential risks to children’s well-being and safety, and the well-being and safety of residential mothers have been ignored or downgraded (Smart and Neale, 1997).” In a context in which recent recommendations for reform in Canada have demonstrated substantial preference for “shared parenting” regimes, the experiences in these other jurisdictions should sound an alarm.

In the end, Boyd’s book represents a detailed and thoughtful assessment of one of the most difficult, divisive and challenging issues of social policy in Canada in the 21st century. By analyzing the legal issues in a social and economic context, and by taking account of the need to promote substantive gender equality in family relationships and in Canadian society, Boyd has made a major contribution to our understanding of the issues and a persuasive argument for legal and social reforms that reflect the reality of parenting in Canada. In the context of great controversy about gender in relation to legal principles of custody and access, it is a measure of Boyd’s accomplishment that she has expressed her views forcefully and persuasively, but without polemics. For thoughtful policy-makers, lawyers and judges, this book offers comprehensive information and careful analysis from the leading academic expert on the law of child custody and access in Canada: in my view, it should be required reading.

Mary Jane Mossman is a Professor of Law at Osgoode Hall Law School, and has written about issues of family law, access to justice and women in law.