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How Bill C-78 Continues to Impoverish Women After Divorce

Yin Wang (501068338)

Department of Sociology, Toronto Metropolitan University

CSOC502 Violence and the Family

Dr. Kelly Train

June 12, 2022

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How Bill C-78 Continues to Impoverish Women After Divorce

Introduction

Although the 1985 Divorce Act has been widely recognized for its improvements

compared to the 1968 Divorce Act, it still has many limitations and needs amendments over

time. On March 1, 2021, Bill C-78, Act to Amend the Divorce Act as well as the Family Orders

and Agreements Enforcement Assistance Act, and Garnishment, Attachment and Pension

Diversion Act came into effect. Bill C-78 aims to promote the child’s best interests, address

family violence, help to reduce child poverty, and make Canada’s family justice system more

accessible and efficient (Department of Justice, 2018). The Bill has received many compliments,

and we can see it improves the 1985 Divorce Act, but we also need to see the problems behind it.

The Bill uses gender-neutral language to show the equality between men and women and to

create a child-focused problem-solving approach during a divorce. However, it does not

recognize the disadvantaged situation many women already face when they end up with a

divorce. The Bill written in a so-called gender-neutral language is actually written from a male

gaze, just like many other laws in our legal system.

The purpose of this paper is to explore how Bill C-78 continues to oppress women. This

paper argues that patriarchal structures reproduce the oppression of women through the gender-

neutral language of law in Bill C-78. This essay will focus on the following sub-arguments: 1)

the male gaze of the law, 2) how Bill C-78 is written through a male gaze, and 3) how Bill C-78

impoverishes women.
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The Male Gaze of the Law

Our legal system is still male dominated, meaning women still do not have a strong voice

about how to build our legal system and how to write the laws. This is because women were not

considered citizens until the last century. In contrast, women were considered the property of

men and did not have any rights, such as the right to vote. The feminist movements have been

fighting for women’s rights for many generations. Women have been able to gain access to many

legal rights now. The legal system attempts to advance women by including women on the same

terms as men (MacKinnon, 2007, p. 119). In this way, the legal system has no sex, and everyone

can be treated equally as citizens in our society. The legal system calls the language it uses a

gender-neutral language. However, is it as neutral as they claim?

When the laws use gender-neutral language, they do not consider women’s disadvantaged

situation. It cannot create equality but inequality between men and women. Several examples

show why a gender-neutral language can put women in a more difficult position. A mandatory

charging policy is one of them. Because the law needs to be gender-neutral, it requires that police

charge all parties involved in the assault - both the abuser and the victim. Commonly, people will

grab the first object available to help defend themselves when they feel they are in danger and

have no possibility to fight with someone much stronger than them. Thus, the female victim

usually receives a more severe charge of assault because she may hold a weapon to defend

herself when the male abuser uses his body to assault her. According to Pollack et al.’s study

(2005), in the last five years, there has been a noticeable trend of women being solely arrested

rather than males and females being arrested in domestic violence situations. More and more

male abusers have learned how to use verbal, emotional, and psychological abuse to trigger

women to strike back at them while staying out of the criminal justice system. The mandatory
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charging policy is intended to protect abused women better. However, its gender-neutral

language does not protect women and puts women at greater risk of getting charged.

Another example would be how the marital rape law was written. Historically, there was

no marital rape law in Canada before 1983, meaning that women needed to provide sexual

services to their husbands upon demand because women were considered their husbands’ legal

property. Marital rape was not recognized as a criminal offense in Canada until 1983. However,

the marital rape law still reflected the patriarchy in the Canadian legal system. The gender-

neutral language once again disregarded women’s disadvantages in such situations. Victims,

usually women, need to prove that the sex was not consensual and provide proof of force and

coercion. The emphasis on “force” and “coercion” reflects how rape laws were written through a

male gaze and painted as “neutral” (MacKinnon, 1989, p.172). They do not consider that men

are physically stronger than women, and women need to protect themselves by stopping fighting

back to avoid further violence from their husbands (MacKinnon, 1989, p.177). Men’s

masculinity is still strongly connected to aggression and domination, which normalizes male

violence over women in marriage. Women are still not taken seriously in the criminal justice

system and could become the ones to blame, especially when they behave in ways that are

different from the traditional expectations of women, which should be submissive and obedient.

For example, people still believe it is what women do that triggers men to use violence towards

them instead of recognizing that the social construction of masculinity normalizes male sexual

violence.

How Bill C-78 Is Written Through a Male Gaze

Bill C-78 is the first amendment of the Divorce Act since 1985 and the Child Support

Guideline since 1997 (Boyd, 2018). It has a significant meaning for reshaping Canada’s family
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law because it addresses many issues that need to be changed over the past decade. Bill C-78

aims to strengthen Canada’s family justice system and mainly focuses on promoting the child’s

best interests, addressing family violence, reducing child poverty, increasing access to justice,

and creating efficiencies (Department of Justice, 2018).

To promote the best interests of the child, there are also several changes made in

terminology, such as using the terms “parenting time” and “parental decision-making” to replace

the terminology of “custody” and “access” to reduce the adversary between both sides

(Department of Justice, 2019). These amendments in Bill C-78 are based on the expectations that

both parents would like to cooperate to support their children’s growth after divorce. Parents are

given more freedom to decide the new family dynamic they would like to have after the divorce

with their children. The terminology changes aim to reduce the adversary between both parents.

The new terminology is neutral and emphasizes parents’ cooperation when caring for their

children. However, when couples do not end their marriages on a good term, the intention of

promoting the best interests of the child could be even more problematic and challenging to

realize. Sometimes, men sought the decision-making rights about their children not because they

care about their children, but to control the mothers of their children (Gavigan, 2003, p. 231).

Children might experience more conflicts between their parents about the decisions they need to

make related to them.

Bill C-78 addresses family violence and its traumatic impact on children. However, this

Bill still requires the victims, usually women, to prove family violence. In addition, victims need

to prove the negative effects of family violence on the child, to prove exceptions to maximum

parenting time, to prove the need for protective measures, and to prove an exception to the other

parent’s right to make day to day decisions during parenting time, etc. (Neilson, 2019, p. 2).
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They all become the burden of the victims, usually women, not the parent who initiated family

violence.

Bill C-78 uses a gender-neutral approach to evaluate both sides, which ignores the fact

that most women are in a disadvantaged position when facing divorce because of the influence of

a patriarchal system. Women experience gender wage gaps, the pause in career development

because of maternity leaves, and being underestimated about their ability to work because of the

emotional needs of their families and children, etc. Women usually have less income than their

male partners because of the abovementioned factors. Most single-parent families in Canada are

still female-headed and are more likely to live in poverty (Department of Justice, 2018). Even

though Bill C-78 considers the child’s best interests as the priority, it does not consider that the

child’s best interests are closely related to the parent they live with, which mostly is their

mothers.

Bill C-78 aims to make the family justice system more accessible and affordable by

encouraging families to resolve disputes outside the court instead of providing more government-

subsidized family mediation services (Bala, 2020, p. 49). This amendment intends to ensure

children not see the conflicts between their parents during the divorce procedure and more

cooperation between their parents (Bala, 2020, p. 49). However, it only works when both parents

are willing to cooperate and volume down the conflict as much as possible. For higher conflict

cases, they still need to go through the procedure in a court or use family mediation services.

Women who are mainly in a worse financial situation than their partners still find it challenging

to afford the expensive legal services they need to protect their and their children’s rights.
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How Bill C-78 Impoverishes Women

In a patriarchal society, women experience gender equality in many ways. Even though

women work like men nowadays, they still experience a gender wage gap, glass ceiling, etc., in

the labour market. Women are still associated with the private sphere, which means most

domestic work is on their shoulders. Compared to women, men are still only associated with the

public sphere and considered “breadwinners” in our society. When they finish work, they can

enjoy their leisure time at home because women do the unpaid domestic chores for them.

Meanwhile, women are not regarded as reliable as men, and employers usually underestimate

their workability because they need to support their families financially, emotionally,

psychologically, and physically. Their professional performances are affected because they need

to take maternity leaves to give birth to children and take time off to care for their children when

needed. Sometimes they may lose their licenses to practice if they have not worked in their

profession for a certain amount of time. Because of their association with the private sphere,

working mothers still usually make less income than their male family partners. When they face

the event of divorce, they are already in a disadvantaged position compared to men.

Bill C-78 continues ignoring the roots of the problem, which are the patriarchal system

and the neo-liberal state policies. With a patriarchal system, women experience inequality in the

workforce and financial difficulties. At the same time, the neoliberal state policies do not support

women through various social programs because neoliberalism believes it is each individual’s

problems that they need to overcome by themselves. For example, the privatization of childcare

services makes it difficult for single female-headed households to afford the expensive parents’

fees with their salaries. At the same time, they need to use it to be able to work. Without

sufficient government funding for childcare sectors, the other problem is the limited space for
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families to enroll their children. Many single mothers who need to work full-time to support their

families need to put their children in unlicensed home daycare facilities, which is very likely to

put their children into unsafe and unhealthy situations. This excellent example contradicts Bill C-

78’s “putting the child first” (Department of Justice, 2018).

Ensuring women receive adequate financial support is crucial to reducing poverty in

single female-headed households. According to the 1997 new child support guidelines, the non-

custodial parent must pay a specified amount for each child based on their income rather than

what their children consume and their economic needs. The custodial parent, primarily women,

must cover the costs of their children, regardless of how much they can receive from the non-

custodial parent. The problem was that the child support payments were based on both parents’

reported income and the amount of time children spent with each parent (Department of Justice,

2021). It overlooked the non-custodial parent’s assets, such as savings, investments, and

homeownership. Non-custodial parents can make arrangements with their employers to receive

part of their salaries in cash, avoiding reporting to Canada Revenue Agency on tax returns. Thus,

the child support payments do not reflect their actual income, and custodial parents cannot get

sufficient support to raise their children to meet the standard of living before the divorce.

Compared to the previous guidelines, Bill C-78 recognized that fathers were not properly paying

their child support payments. Based on the old calculation, the support payments were either

unpaid or not paid sufficiently to meet their children’s needs. According to Bill C-78, the

provincial governments will create child support calculation and recalculation services to

determine the amount of child support payments through an administrative process (Boyd, 2018).

Spouses can appeal if they disagree with the calculations and recalculations (Boyd, 2018).
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However, it is still unclear how the problems mentioned above will be corrected to ensure their

children would not live in poverty.

Conclusion

Bill C-78 has significant meanings in Canadian family law. However, we can still see its

male perspective from its so-called gender-neutral language. Patriarchy is still rooted in the legal

system, which means its male perspective is painted with “neutrality.” Meanwhile, the legal

system still ignores women’s perspectives and experiences and is considered biased and

subjective. This must be changed, because the gender-neutral language creates inequality in law

and continues damaging women’s rights. In a male-dominated society, “reflecting difference in

law is equality, not inequality” (MacKinnon, 2017, p. 260).

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References

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