Race(ing) Family Law?: The Challenges

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The process of responding to the proposed amendments to the once “live” Bill C-22 sparked a series of continued conversations across Canada among Aboriginal women, women of colour, and immigrant and refugee women as to how race would and should be addressed within the Divorce Act. Although it is now uncertain what will happen with the Divorce Act, the concerns and flags that have been raised regarding race are essential to future strategies, lobbying and recommendations for changes to family law.

The Divorce Act does not acknowledge, respect, or address Aboriginal rights, historical and present manifestations of colonialism and the specific impacts and lived realities of Aboriginal women, children and communities. Notions of “family”, “culture”, “best interests”, are reflective of dominant colonial definitions that have a history of violating Aboriginal culture, heritage, values, and beliefs. How, or if, the Divorce Act can be amended or applied to benefit Aboriginal women, children and communities is something that continues to be discussed between feminist family law reform coalitions and Aboriginal women’s groups.

There is a particular concern from women of colour who advocate for racialized women in custody and access matters as to how a test like the best interests of the child can be implemented with any critical analysis of race that situates the assessment of racial identity in relation to experiences of racism. Although the Van de Perre v. Edwards [1] case recognized race as a valid factor in determining the best interests of a child, it did so on a limited basis with no broader social, political or historical analysis that would have acknowledged the impact of systemic and institutional racial oppression. In addition, the court considered racial identity to be only one factor for consideration, not a key or essential factor. The Vancouver Custody and Access Support & Advocacy Association (VCASAA) submission regarding changes to Bill C-22, cautioned how race is understood by the courts:

“It must not be left to mis-interpretation that what it intends to protect is the child’s access to dominant European/white values but that it protect the interests of racially marginalized children within a dominant European/white society/context.” [2]

In addition, the VCASAA submission stated:

“What is lost, without appropriate guidance, is how ‘culture’ can be invoked, in Canada and internationally, to threaten universal respect and promotion of women’s equality which is being fought for by women within ALL cultures.” [3]

The dominant lens through which family law cases are addressed by the judiciary is from the perspective of privilege, to reinforcing white, male, heterosexual, middle-class, able-bodied norms of what constitutes “best interest”. This makes it inherently difficult to trust how the applications of race would be interpreted and applied by the courts. The reality is that the legal system is strongly “raced” by the privileging of whiteness. As highlighted in S.B. v. S.H.J.G. [4], a recent custody and access case from the B.C. Supreme Court, the mother, Ms. S.B., who identified as a Caribbean woman, expressed her concern to the court about her daughter’s (B.B.G.) need to be exposed to her “racial/cultural heritage”. As noted in the case, Ms. S.B.:

“…is concerned that Mr. S.H.J.G. and his friends will not be able to assist B.B.G. in many aspects of her life, that they, as Caucasians, simply lack the understanding to do so, though they may have the best will in the world.” [5]

Justice Brown addressed the issue of race in S.B. v. S.H.J.G. by referencing Van de Perre:

“As in the Van de Perre case, B.B.G. has two parents, each of whom shares part of the race and culture of the child. Each parent will expose B.B.G. to a part of her racial and cultural background. I am satisfied that the generous access which I am providing for Ms. S.B. will allow her to educate B.B.G. with respect to that aspect of her racial/cultural background.” [6]

The father, Mr. S.H.J.G., gained full custody of B.B.G., while the mother, Ms. S.B., was given generous but supervised access. The following factors, as highlighted in the case, demonstrate the complexities and reflect many aspects shelters and women’s centres see and hear about from women who are before the courts in family law matters: child abuse allegations made by the mother against the father; threats made against the mother by the father; the mother fled the country with her child to be closer to her family; and, the mother was not a Canadian citizen and had sought shelter in a transition house.

The court in this case, as it did in Van de Perre, dealt with the access to the race and culture of one parent, as instructional, neutral, equal — as if it is only to learn about special events or aspects of one’s heritage. The multi-layered impacts on women and children due to the intersections of their identities needs to be addressed in the family law context. Multiple issues are linked. For example, factors such as race, class, gender, immigration status, and violence against women cannot be easily prioritized or balanced when together they create a lived experience that reduces access to legal aid resources, impoverishes, enhances fear, isolates and, generally, makes women and children incredibly vulnerable in society.

The courts need specific direction as to how to address race so that it is not used as a vehicle for abuse primarily by men/fathers to gain further control over their ex-partners/children. This direction has been given somewhat through submissions and briefs on Bill C-22. How the best interests of the child and issues related to the Hague Convention on the Civil Aspects of International Child Abduction and mobility rights will continue to evolve before the courts are some of the many concerns for which racialized women in particular will need responses.

Race(ing) family law, specifically in the test for the best interests of the child, is done in some of the many submissions put forward regarding Bill C-22 by a variety of women’s organizations, but not all. Although the courts could further marginalize Aboriginal women, women of colour, and immigrant and refugee women, the challenge ahead for women who are organizing around family law reform will be to continue to push for legislation, stated and in practice, that reflects and respects the realities and experiences of ALL women. The issue of whether legislation will address and/or benefit racialized women in custody and access matters by the inclusion of race as a factor in determining best interest of the child, is yet to be determined. What is essential is that issues and impacts of systemic, institutional and historic racism be discussed, explored, and kept on the table for current and future family law reform lobbying and organizing

Footnotes:

1. [2001] 2 S.C.R. 1014.

2. VCASSA Submission to the House Standing Committee on Justice and Human Rights Re: Changes to Bill C-22 -Divorce Act Amendments (August 2003), online: www.harbour.sfu.ca/freda/issues/vcasaa.htm at 4.

3. Ibid.

4. [2003] B.C.J. No. 478.

5. Ibid at para 59.

6. Supra note 4 at para 61.

Zara Suleman is an activist and former front-line rape crisis and shelter worker and advocate from Vancouver; a member of VCASAA and in her final year of law school at the University of Ottawa.

Zara Suleman