Boyd Autonomy for Mothers

Autonomy for Mothers? Relational Theoryand Parenting Apart

Susan B. Boyd

Published online: 10 August 2010

� Springer Science+Business Media B.V. 2010

Abstract This article explores the tensions between autonomy and expectations of

mother-caregivers, in the context of normative trends in post-separation parenting

law. Going back to first principles of feminism, the article asks what scope for

autonomy there is for modern mothers in the face of socio-legal norms that prioritise

shared parenting. The very relationship between mother-caregivers and children

illustrates the important connection between relationships and autonomy: the

caregiving that mothers provide enables children to become autonomous persons

yet, at the same time, this caregiving relationship constrains maternal autonomy. In

the current context that encourages shared parenting, the potential for maternal

autonomy may be even more compromised—a deep irony in a supposedly post-

feminist era. A responsible mother is now expected to nurture a child’s relationship

with the father, unless he is proven to be harmful. The ability of women to be at all

autonomous from the fathers of their children in the face of this normative

expectation is dubious, even when the adults live separately. Moreover, the domi-

nance of the heterosexual and patriarchal family—always a challenge for women’s

autonomy—is reproduced in this imposition of equal parenting in the name of

children’s rights. This article uses a contextual approach to relational autonomy to

point to an approach that might challenge the normative climate of shared parenting.

Keywords Autonomy � Legal norms � Motherhood � Relational theory �Shared parenting

Story #1

In a 2006 case, the parents separated before their son was born, after a very short

marriage. The child, who was three, had always lived with his mother in Vancouver

S. B. Boyd (&)

Faculty of Law, University of British Columbia, 1822 East Mall, Vancouver, BC V6T 1Z1, Canada

e-mail: [email protected]

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Fem Leg Stud (2010) 18:137–158

DOI 10.1007/s10691-010-9152-3

and she had sole custody. The father saw his son each week. The mother had a good

job with flexible hours with a company. This company closed down its Vancouver

operations but offered her a position in either of Houston, London or Singapore. She

chose Houston because it was closest to Vancouver. If she did not move, she would

lose her job. There were no equivalent positions in Vancouver and she would have

taken a sizeable pay cut in any other job in Vancouver. If allowed to move, the

mother agreed to waive child support and facilitate visits to Vancouver. In other

words, this mother did all she could to ensure the move did not compromise the

relationship between father and son. She acted as a responsible breadwinner and

custodial parent. Nevertheless, she was denied permission to move because of the

distance and the effects on the access schedule, the young age of the child, and the

child’s relationship with extended family in Vancouver.1

Story #2

A woman wanted to have a child and raise the child on her own. Her difficulty was

conception. She accepted the offer of a man she was dating sporadically that she use

his sperm. Using IVF, she gave birth to twins. She never cohabited with the man and

concluded that to do so would be unhealthy for her and her children. She planned to

parent as a single mother, with the help of her father. Unluckily for her, legislation

that clarified that a sperm donor is not to be recognised as a parent unless the mother

is his spouse or a person with whom he is in a relationship of interdependence of

some permanence2 came into force only after a court recognised him as a parent.

Since the birth of the twins, the genetic father has claimed, and been awarded, more

and more parenting rights, including joint legal custody when the twins were two, as

a result of various court actions. The mother has been constructed as a problematic

parent who unreasonably resists shared parenting with the father. A parallel

parenting order has now been put in place in recognition of the fact that there is such

high conflict. The father now has virtually equal time with the children. The judge

stated: ‘‘A parent should not be deprived of the opportunity to play an active role in

parenting because of an innate inability of the parents to get along.’’3

Introduction

These two stories based on recent Canadian cases illustrate both the power of shared

parenting norms and the potential limits that these norms place on women’s

autonomy over life decisions for themselves and for their children. This article

explores the tensions between women’s autonomy and modern expectations of

mother-caregivers who do not live with the fathers of their children. It does so in the

1 Karpodinis v Kantas, 2006 BCCA 272, 27 RFL (6th) 254, leave to appeal to SCC refused [2006] SCCA

No 318 (16 November 2006).2 Family Law Act, RSA 2003, c F-4.5, s 13(3).3 Caufield v Wong, 2007 ABQB 732, 47 RFL (6th) 144 at [37].

138 S. B. Boyd

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context of trends in post-separation parenting law, with a focus on heterosexual

relationships. The focus on opposite-sex parents reflects the historical dominance of

such relationships in parenting disputes that receive legal attention. However, the

norms discussed are relevant also to the increasing number of disputes between

lesbian mothers and sperm donors, and, potentially, even to those between lesbian

mothers.

Going back to the first principles of feminism and the women’s movement, I ask

what scope for autonomy mother-caregivers have in the face of socio-legal norms

that increasingly prioritise significant involvement of fathers in children’s lives,

often regardless of the quality of the relationship between the parents or whether

there has even been a relationship between the parents involving cohabitation or co-

parenting. I also situate this question in relation to the established legal principle

that guides decisions in this field, the best interests of the child, referring to social

science evidence. Specifically, I am concerned about the implications of normative

shared parenting for mothers who either never had, or no longer have, a

relationship-based motivation (such as love) for facilitating the child’s relationship

with the other parent. Finally, I lay some groundwork for using relational theory to

shift the normative force of shared parenting while also identifying some pitfalls in

this approach. I argue that the socio-economic system that exploits women’s

reproductive labour must be taken into account and that women must have some

ability to make choices of fundamental importance to their lives, even within the

complex relational ties of parenting.

Feminism, Autonomy and Relationships

Feminism has been centrally concerned with freeing women to shape their own

lives, rather than accepting the definition of womanhood given by male-dominated

society (Nedelsky 1989, pp. 8–9).4 In some sense, this is what women’s liberation

was all about at the outset of second wave feminism: the freedom to choose one’s

own relationships; the ability to leave destructive relationships; the ability to choose

when or whether to bear children; the ability to choose work that was not defined as

appropriate for women. This language of choice is notable, as it is a key component

of liberalism (Sandel 1998) and neo-liberalism (Harvey 2007), as, indeed, are many

approaches to autonomy (Schneewind 1998).

Yet feminists have also been critical of both the liberal concept of ‘choice’ and

the individualist version of autonomy at the core of liberalism and formal equality

(Mackenzie and Stoljar 2000, pp. 5–12). The feminist critique of choice, autonomy

and liberalism emerged particularly during the latter stages of the second wave

women’s movement when it became clear that, for women especially, achieving

autonomy is complex. Choices are shaped and often constrained by forces such as

the ties of family, familial and heterosexual ideology, and economic dependency

(e.g. Denbow 2005). Another way of putting this is that individuals and their choices

4 Feminists are also concerned with freeing men to live in ways that depart from culturally accepted

norms of masculinity, but this concern is more recent (see Collier 2006).

Autonomy for Mothers? Relational Theory and Parenting Apart 139

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are socially constructed: we are deeply influenced by our social contexts and by

power relations and ideologies connected to gender, race and class. Meaningful

autonomy might, then, only be feasible in a completely neutral socio-economic

system that was free of, say, gendered power relations. Whether such a system is

even possible remains in doubt. In the meantime, the concept of autonomy must be

considered relationally within the context of power relations and ideologies that

shape and constrain choices. More specifically, it must be kept in mind that to date,

men have had systematically more material, institutional and discursive power to

shape the process of social construction, although clearly men’s power varies

depending on which men and which women we are examining, and according to

factors such as race, class and ability. Neither social construction nor power relations

are totalising or static, else feminism would have no purpose other than critique;

nevertheless, they have considerable influence on women’s lives and decisions.

Relationships often constrain women’s potential for autonomy, although they can

also enable autonomy (Mackenzie and Stoljar 2000, pp. 5–12). Relationships, too,

are socially constructed, for instance by heterosexism and the ideology of

motherhood. At a general level, relational theory reminds us that we are inevitably

shaped by our connections with others. Most relevant for this article, the very

relationship between women as mother-caregivers and children illustrates the

important connection between relationships and autonomy and the ways in which

relationships can constrain autonomy as well as facilitate it. Specifically, the

caregiving that mothers provide enables children to become autonomous persons

yet, at the same time, this caregiving relationship (inevitably?) constrains maternal

autonomy. Given the still powerful societal expectations that mothers will provide

primary care for children, and the strong sense of responsibility that many or most

mothers feel towards the well-being of their children, the constraints that parenting

imposes on female autonomy remain more significant than those on male

autonomy.5 Women’s ‘‘pregnant embodiment’’ (Collier and Sheldon 2008,

p. 60)—their more continuous physical experience in relation to children as a

result of pregnancy, breastfeeding and even caregiving responsibility—prevents

them from being able to opt in and out of involvement with children in the way that

men still can if they so choose. Despite long-standing calls for men to share

parenting and for society to support work-life balance, this constraint remains

surprisingly well entrenched. For instance, Canadian studies demonstrate that

despite increases since 1986 in the time that fathers with children under 19 spend

time on childcare, as of 2005, this time had increased more for mothers than fathers.

Moreover, women account for 89% of stay-at-home parents (Marshall 2006, p. 11).

The landscape of parenting thus remains stubbornly gendered.

The constraints on mothers are not simply biological or physical. The ideology of

motherhood ‘‘has an effect on women’s autonomy, so that we are often not viewed

as persons in our own right, with choices to make about ways of being and living’’

(O’Donovan and Marshall 2006, p. 103). This ideology is born of a still powerful

5 For an eloquent reflection on the pressures and constraints experienced even by a privileged, white,

middle-class feminist law professor with a husband who shared parenting responsibility, see Nedelsky

(1999).

140 S. B. Boyd

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public/private divide, which holds women responsible for children and family, and

constructs women as separate and distinct from men, who still dominate the public

sphere (Boyd 1997; Thornton 1995). Moreover, although the ideology of

motherhood has changed, far from waning, the expectations of the ‘new momism’

also generate a constraining cultural norm (O’Donovan and Marshall 2006,

pp. 110–111).

Motherhood must also be seen as a relationship within larger social and

economic structures. Without a generous social or familial structure surrounding a

given woman’s mothering (for example, one that might allow her some time without

the children to pursue her own interests), her ability to make choices for herself is

inevitably constrained. The fact that women still are paid less than men on average

and remain concentrated in traditional, female-dominated fields of employment

goes some way to explain why women in heterosexual parenting dyads tend to take

part-time work more than their male counterparts (Statistics Canada 2008,

pp. 109–110). That is, they take more time out to cover family responsibilities.

Many workplaces are structured in a manner that fits poorly with parenting

responsibilities. As a result, enhancing a woman’s autonomy might mean not an

absence of state interference, but also ‘‘the positive provision of resources to enable

someone to have a meaningful set of options’’ (Jackson and Day Sclater 2009, p. 2).

Despite this relational nexus between motherhood and socio-economic structures,

in most western societies, the family itself is constructed as autonomous and as part

of the non-public sphere (see, e.g. Barrett and McIntosh 1991; Fineman 2004).

Parenting is very often accomplished in isolation from extended families and/or

without adequate childcare and other social supports, so that maternal autonomy

is correspondingly limited. Moreover, as Martha Fineman has documented, the

inevitable dependency of young children generates a derivative (economic and

structural) dependency in their caregivers, usually women (Fineman 2004,

pp. 35–37). As of yet, society has not fully recognised or accommodated this

derivative dependency, which in turn negatively affects the ability of mother-

caregivers to exercise autonomous choices or to achieve the economic stability

necessary for them to do so. Fineman suggests that autonomy is only possible in

conjunction with the meaningful and widespread attainment of equality, and that

equality must include equalisation of basic resources so that there is a ‘‘floor below

which no citizen shall fall’’ (Fineman 2004, p. 29). I do not suggest here, nor does

Fineman, that autonomy should be equated with independence and self-sufficiency;

rather, as we will see below, this feminist and relational approach to autonomy

would acknowledge that most if not all individuals live their (even autonomous)

lives ‘‘from within relationships with others’’ and that autonomy ‘‘is not realizable

without the ongoing support, care, and guidance provided by others’’ (Ball 2005,

pp. 358–359; Friedman 2003; Reece 2008). The difficult question is how to support

women’s autonomy within the context of these relationships, not all of which are

supportive and some of which may be oppressive, and in a society that does not yet

properly support mother-caregivers or women’s reproductive labour (Donchin

2009), but, rather, exploits it.

In the next part, I identify the ways in which the trends in child custody law affect

women’s potential for autonomy. Much has already been written about modern


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trends in child custody law, the rise of the fathers’ rights movement, the normative

push towards joint custody and shared parenting, and the implications for maternal

claims for custody. However, little of this work has explicitly explored in any depth

the question of women’s autonomy in the face of these trends (but see Reece 2006).6

It has become taboo to emphasise women’s issues when the interests of children are

being addressed, especially in the face of expectations that mothers should be

selfless in relation to children. As Diana Meyers has said: ‘‘Mothers are culturally

represented as self-sacrificial, unconditionally loving, and totally identified with

their children—the prototype of a gladly nonautonomous being’’ (Meyers 2004,

p. 257). In child custody law, where the best interests of the child standard is the key

legal test, it is particularly difficult to centre women’s autonomy interests (a point to

which I return in the last part of this article).

That said, the ways in which normative encouragement of shared parenting,

typically done in the name of the best interests of the child, constrains women’s

ability to protect themselves and their children from abusive conduct by the other

parent have been well documented. I draw on that literature, as the clearest example

of the tension between autonomy and safety versus shared parenting norms, but I

also look beyond the context of domestic abuse in exploring the consequences of

normative shared parenting for women’s autonomy. We have begun to see the

problematic consequences (including for some children) of a bifurcated approach

whereby maximum contact or shared parental responsibility is presumed to be the

best scenario for most post-separation families, subject to limited exceptions

intended to protect the exceptional ‘minority’ of children who have been subjected

to or exposed to abuse (see Fehlberg et al. 2009; Rhoades 2008). It is therefore

important to re-insert the question of women’s autonomy into the picture, even in

scenarios where abuse or violence is not at issue (Reece 2006).

Consequences of Normative Shared Parenting for Women’s Autonomy

As the result of a rethinking of paternal responsibility in child welfare and

development, and the emergence of new socio-legal norms around shared parenting,

understandings about parenthood are being reshaped (Smart 1999). For instance,

fatherhood has become a new policy concern, with initiatives to promote ‘good’

fathering and social responsibility on the part of men, whether they are fathers

within intact families or outside that structure. As Richard Collier and Sally Sheldon

say, ‘‘[f]athers are now seen to have a more direct, unmediated relationship to their

children’’ (2008, p. 117) than in the past. In other words, paternal relationships with

children are no longer mediated by the type or quality of relationship that a father

has with the mother.

Some of these trends are positive, particularly for women who seek greater and

more direct sharing of parenting responsibilities by their male partners. Interest-

ingly, these trends arguably limit paternal autonomy in relation to children, for

6 Reece (2006) cites other feminist scholars as having adopted an autonomy-based approach (notes 75

and 76 at p. 547) but their treatment of autonomy is largely implicit.

142 S. B. Boyd

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instance, by insisting on greater engagement with children as well as financial

responsibility for children. The modern ‘good father’ is supposed to be not ‘‘just a

breadwinner and remote disciplinarian, but also a hands-on carer and active

presence in his children’s lives’’ (Collier and Sheldon 2008, pp. 65–66). Children

can benefit from a less rigid sexual division of labour between their mothers and

fathers and the opportunity to receive engaged attention from more than one parent.

Enhanced child support enforcement also assists with redistribution of income to the

child’s household. However, it is also clear that child support law reforms have

spurred the fathers’ rights movement in its push for shared parenting norms

(Crowley 2008; Boyd 2003) with less than clearly positive results for mothers and

children.

In the current shared parenting climate, the potential for maternal autonomy is

arguably more compromised than it was a couple of decades ago—a deep irony in a

supposedly post-feminist era. In part, this is a result of the trend away from a legal

framework that tended to award sole custody to one parent (more often the mother)

and access to the other. Norms around fatherhood have been shifting in a manner

that also affects normative expectations of motherhood and complicates any claims

for autonomy that a mother might make. As family law policy has encouraged men

to take responsibility for child care by emphasising maximum contact between

children and ‘both’ parents after separation or divorce (Boyd 2003; Collier and

Sheldon 2008), as fathers’ rights have been emphasised by fathers’ rights advocates

and policy-makers (Collier and Sheldon 2006; Crowley 2008) and as sole custody

awards have waned in frequency and popularity both inside and outside courts, the

expected role of mothers and fathers in relation to children has begun to shift—at

least at the conceptual and policy level, if not always in empirical reality.

Canadian statistics for 2003 indicate that in 44% of court-determined custody

cases in the divorce context, the outcome is an order for joint custody, which is

more than double the number from the mid-1990s and four times the figure when

compared to the late 1980s. The rate at which women are awarded sole custody in

cases that go to court has fallen from more than 70% to just 48% from the late 1980s

to 2003. The share of sole custody awards to the father has also dropped from

around 13% to 8% in the same period, so that fathers are gaining custody through

joint custody awards, not sole custody (Statistics Canada 2006, p. 40). There is

much anecdotal and academic testimony to the normative power of shared parenting

in current decision-making (Fehlberg et al. 2009; McCarthy 2009; Rhoades 2002a),

with many Canadian lawyers reporting that joint custody is the de facto starting

point for most judges. It is likely that the percentage of joint custody awards has

gone up since 2003.

What could possibly be wrong with this picture of norms that promote engaged

fatherhood? The answer depends on the context within which claims around

fatherhood arise and, in particular, the extent to which policy assumptions about

children’s best interests are imposed in situations where a woman is effectively

parenting on her own but must cooperate with a father due to a joint custody award,

or where she may legitimately prefer to parent on her own. While many women seek

an engaged father with whom to co-parent, the trends to prefer shared parenting

present serious challenges to women who are parenting without the biological father


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for whatever reason, whether it be abuse at the hands of such a man (Humphreys

and Harrison 2003);7 concerns about his ability to be a constructive parent (Rhoades

2002b); plans to parent with a same sex partner (Kelly 2004); or a wish to parent

autonomously or without a partner (an increasing phenomenon as ‘‘single mothers

by choice’’ increase in number (Hertz 2006)).

Despite these scenarios that may suggest a legitimate claim to a woman parenting

without the child’s genetic father, gender convergence has increasingly character-

ised modern accounts of fatherhood, with gender neutrality and formal equality

dominating discussions about parenthood in a way that tends to obscure the ongoing

gendered nature of reproductive labour. For instance, greater involvement by fathers

in decisions such as abortion and formerly women-centred processes such as

antenatal classes and births can be double-edged, as men’s greater involvement

tends to breed greater recognition and enlarged rights for fathers (Collier and

Sheldon 2008; see also Donchin 2009). These rights can translate into greater

control over a pregnant woman or mother, in relation to decisions that will have

more consequences for her life and body. At the very least, the centrality of the

female role in reproduction and parenting is being challenged and we need to

consider what space for her decisions should be preserved in this brave new world.

Moreover, although legal rhetoric promotes shared parental responsibility, in

practice few joint custody or shared parenting awards reflect meaningful shared

responsibility; many children reside primarily with one parent, usually the mother,

with the joint award dictating that she must involve the other parent in decision-

making at least (Fehlberg et al. 2009). A mother-caregiver is, then, both responsible

for childcare and for ensuring involvement of the father. In a supportive, non-

conflicted relationship between adults who both prioritise the interests of the child,

this model can work well for women and even give them more flexibility to pursue

their interests outside parenting. In other less supportive circumstances, the joint

decision-making limits a mother’s potential to make decisions that she may deem to

be in her child’s or her own best interests. If disputes arise, a responsible mother is

still expected to nurture a child’s relationship with the father, unless he is proven to

be harmful to the child. If she does not do so, she may well be labelled as an

‘‘implacably hostile’’ (Smart and Neale 1997, p. 336) or alienating mother. Mothers

who raise what may be legitimate concerns about the safety of contact arrangements

can be vilified as ‘‘no contact mothers’’ (Rhoades 2002b). In some cases, they lose

custody as a result. The ability of women to be at all autonomous from the fathers of

their children in the face of this normative environment is dubious, even when the

adults live separately. As Helen Rhoades has pointed out, the preference for joint

parenting in effect binds only resident or primary caregiver parents, usually women,

with no penalties being incurred by fathers who fail to live up to their (non-

financial) parenting responsibilities (Rhoades 2002b).

Even putting aside conflicted or abusive relationships, if a woman has cohabited

with the father (or he has gotten to know the children, as in Story #2), it is

increasingly difficult for her to later choose to formulate a life that is marked by

geographical distance from the father or make decisions that may limit his

7 Unmarried fathers are also increasingly gaining legal status (Collier and Sheldon 2008).

144 S. B. Boyd

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involvement with the children—even if this involvement falls well short of shared

care responsibility. Restricting a mother-caregiver’s choices in this regard may well

have negative consequences for her relationships with family and new partners, her

career and her economic autonomy, as in Story #1. In relocation applications, a

woman might be denied the opportunity to move with her child to be nearer family

support networks, to take a better paying job, or to join a new partner. In some

cases, custody is changed to the non-moving parent, sometimes regardless of

whether the move actually happens (Thompson 2007, pp. 322–323). This normative

climate can also result in custodial mothers ‘choosing’ not to even try to move,

when the move may actually be in the best interests of their own or their child’s

security, or both, and/or their economic well-being. Even if the move cannot be

proven to be in the best interests of the child, or it may take time to tell (and this is

an inexact science), questions can be raised about the trend for government and

lawmakers to second guess a mother’s judgement about her own and her child’s

interests in the face of disagreement by the other parent.

Moreover, the dominance of the heterosexual and patriarchal family—histori-

cally a challenge for women’s autonomy—is reproduced in this imposition of equal

parenting by ‘both’ parents (a term that implies a biological mother and father,

regardless of actual familial circumstances or the possibility of multiple parents in a

child’s life) in the name of children’s interests. As Fineman puts it, ‘‘some recently

enacted family laws make it much more likely that traditional patterns of paternal

right and responsibility will continue even in a world in which the form of many

families will otherwise not be traditional’’ (2004, p. 185). Indeed, much fathers’

rights discourse is marked by a heterosexist concern with the consequences for

children who are raised without a male (heterosexual) role model (Boyd 2004) and

my interviews with fathers’ rights advocates in both the United Kingdom and

Canada reflect a tendency to talk about children having substantial contact with

‘‘both parents’’, typically with a focus on biology. It has been forcefully asserted

that children must know their (biological) fathers, both in the sense of knowing their

identity and having a meaningful relationship with them. In some jurisdictions such

as England, the right of children conceived from donated sperm to know the identity

of their donors, at least as of the age of majority, has been introduced.8 In others,

such as Canada, this right has not as yet been legislatively enshrined, but the notion

that maximum contact is normally in a child’s best interests has been legislatively

promoted and embraced by judges, sometimes regardless of marital status or even

demonstration of a father’s commitment to parenting.9 Sometimes these legal

developments are inspired by a state interest in the father assuming financial

responsibility for children (Boyd and Young 2007) but they go further to affirm

parenting rights, even if the father is not much involved in care responsibilities.

Many might say, what is wrong with these trends? Surely it is of crucial

importance for children to know their fathers. Some would also suggest that once a

8 Human Fertilization and Embryology Authority (Disclosure of Donor Information) Regulations 2004,

SI 2004/1511.9 Divorce Act, RSC 1985 (2nd Supp), c 3 s 16(10); Trociuk v British Columbia (Attorney General)[2003] 1 SCR 835, 2003 SCC 34.


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woman has a child with a man, her autonomy should be constrained in the name of

the child’s best interests. However, there is something deeply troubling about the

suggestion that a woman’s autonomy should be limited by an overriding concern

that a child’s relationship with a father be prioritised, especially when seen against

the backdrop of the ideology of motherhood described above. Even as mothers are

embedded within parenting relationships, surely women must be viewed as having

some degree of choice to make decisions about ways of being and living. Otherwise

we concede that women’s socialisation into the normative frameworks of

womanhood and motherhood necessarily restricts their capacity for self-determi-

nation (O’Donovan and Marshall 2006, p. 119).

Has Normative Shared Parenting Gone too Far?

Some limits on women’s autonomy in the parenting context are of course inevitable,

but the question is to what extent they should be imposed by legislation or judges in

the name of children’s best interests, especially when the scientific evidence

remains unclear about the weight that should be given to factors such as paternal

contact. Constraints on a woman (for example, on her ability to relocate) may be

acceptable if they are negotiated respectfully between two adults, and with

flexibility regarding changes in plans and an ability to adjust arrangements

according to adult and child needs. However, even negotiated or mediated

agreements can be agreed to under coercive circumstances (Wiegers and Keet 2008;

Fehlberg et al. 2009). Moreover, in most cases that go to adjudicated dispute

resolution, respectful negotiation has failed, flexibility is unlikely, and a high level

of conflict is present, meaning that shared parenting or joint custody are rarely

appropriate. Moreover, shared parenting scenarios can be destructive to children’s

well-being as well as that of their mother-caregivers.

Research shows that any effort to impose a ‘one size fits all’ approach such as

shared parenting is both wrong-headed and ineffective. The increased burden that is

now placed on custodial mothers to ensure that children have contact with the other

parent, sometimes at significant costs to themselves or their children, has been

criticised in several countries (Rhoades 2002b; Cohen and Gershbain 2001).

Assuming formal equality between mothers and fathers in post-separation parenting

is misguided because, as Martha Shaffer has summarised:

The research…suggests that children do not necessarily benefit from greater

contact with their non-custodial parent—rather it is the type of parenting the

non-custodial parent engages in, not the amount of time that parent spends

with the children, that is most significant… [T]he research to date indicates

that children do not fare better post-divorce in joint custody arrangements than

they do in sole custody, and some children—including those in high conflict

families—may fare worse. Finally, the research confirms findings on the role

of conflict that have been well known for some time—parental conflict

significantly increases the risk of reduced well being on the part of children

who have experienced their parents’ divorce. (2007, p. 287, emphasis added)

146 S. B. Boyd

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American research has also challenged false assumptions about the benefits of

imposed gender symmetry in parenting, showing instead that child well-being after

divorce is consistently associated with (a) the economic contribution of the father

and (b) the closeness of the mother–child relationship (Amato and Gilbreth 1999).

At a more general level, research does not support the proposition that children need

both a mother and a father (Biblarz and Stacey 2010). As well, United Kingdom

research has shown that children value the quality and flexibility of relationships

with parents rather than quantity of time (Smart et al. 2001). Concerns have been

raised in Australia about the impact on children of legislated shared parental

responsibility regimes, which may be a key variable in generating poor emotional

outcomes in children when their parents are in conflict (McIntosh and Chisholm

2008; Rhoades 2008, p. 280). Research suggests that the attributes that increase the

likelihood of shared arrangements working smoothly are not typically characteristic

of parents who litigate or otherwise require significant supports to determine and

administer shared parenting plans. These studies raise serious questions about the

durability of shared arrangements in high conflict climates as well as the power of

shared arrangements to improve parental cooperation and diminish children’s

perceptions of parental conflict (McIntosh 2009, p. 397).

Other studies focus more on adult relationships and the viability of shared

parenting. It appears that cooperative self-selection into shared parenting arrange-

ments is key to successful shared care outcomes, and yet, worryingly, studies point

to increased rates of shared parenting in populations of disputing parents (McIntosh

2009, pp. 391, 393). Bastard and Cardia-Voneche explain variable patterns of

contact and parenting after separation in the face of a growing socio-legal consensus

on the need for both parents to have a strong, ongoing relationship with children by

reference to the correlation between how parents functioned during their partnership

to how they function afterwards. They conclude that the norm of shared parenting

after separation may be simply irrelevant for parents who did not share that role

prior to separation (Cardia-Voneche and Bastard 2007). Earlier research in England

also indicated the relevance of pre-separation parenting patterns to post-separation

possibilities (Smart and Neale 1999), as does new research from Australia (Fehlberg

et al. 2009, p. 263). Gender asymmetry in adult parenting relationships is, then,

difficult to alter via the introduction of new legal norms.

The research suggests that social engineering through the introduction of legal

norms in the complex field of parenting relations has at best been overly simplistic

and at worst has generated problematic consequences for children and caregivers.

Moreover, mothers appear to be more burdened by the consequences of the new

norms than fathers do, with some women reporting that ex-partners try through

shared care arrangements to control their and their children’s lives (Fehlberg et al.

2009, p. 266). Yet judges (and lawyers and mediators assisting disputing parents)

increasingly feel that the normative starting point for decision-making is some form

of shared parenting, even if the governing legislation does not state a presumption in

favour of joint custody. Where the governing statute does indicate a preference for

shared parental responsibility, subject to exceptions, as in Australia, the normative

power is even greater (Rhoades 2008). Even in cases where problems with one

parent’s parenting behaviour have been identified, such as substance abuse


123

interfering with good judgement in care of a child or abusive behaviour towards a

child or caregiver, judges are reluctant to limit contact. Studies have shown that

supervised access is increasingly being ordered in the face of (usually paternal)

behaviour that does not necessarily show any promise of changing over time

(Sheehan et al. 2007; Fehlberg and Hunter 2007) and where access should perhaps

be restricted or terminated.

Some norms are of course necessary in this field; the question is which norms

might better take account of the complex social relations identified above and

diminish some of the more unreasonable limits on women’s autonomy? In

particular, norms must avoid a naive approach that assumes that equality between

women and men has been achieved, and instead attend to the need to take account of

inequalities between women and men that have been caused by the existing, still

highly gendered, allocations of household labour and childcare (Boyd 2003;

Fineman 2004, p. 183). Law makers should also focus less on developing

aspirational norms to guide those parents who can come to relatively easy

resolutions of their issues, and instead more cautiously direct norm creation to those

who are in higher conflict or in circumstances that dictate against shared parenting.

Otherwise we tend to fall into a false dichotomy that assumes that shared parenting

must be mandated in most cases versus a different resolution in exceptional

circumstances, for instance, those involving abuse, where a more exclusive form of

parenting will be permitted. The research does not seem to support a notion that

exceptional circumstances are rare.

A more complex view of ‘equality’ in the field of parenting is both warranted

and possible. As various methods of becoming a parent arise, the legal system

needs to avoid an assumption that all parents need to be treated ‘equally’. Drawing

on sociological research, Carol Rogerson (2001) makes a similar point in relation

to the legal recognition of step-parents, suggesting that differentiated notions of

parenthood in different contexts should be possible. In the next section, I try to

develop this idea in the context of parenting apart, using the concept of relational

autonomy.

Looking for Norms that Balance Responsibility and Autonomy

In suggesting a way forward, I want to draw more explicitly on relational theory, a

diverse strand of scholarship that has been developed mainly by communitarians

who emphasise the values of community (e.g. Sandel 1998; MacIntyre 1984; for a

review see Reece 2003) and feminist theorists (e.g. Nedelsky 1989; Mackenzie and

Stoljar 2000). Relational theorists generally seek, typically in contrast to liberal

individualist approaches, to understand individuals as socially embedded and as

developing their identities and capacities within the context of a complex web of

social relationships. As suggested in the first part of this article, individuals—and

autonomy—are inevitably shaped by relationships and exercised in a relational

context. The liberal individualist concept of autonomy is rejected as both untenable

and undesirable in relational theory and the idea of relational autonomy is proposed

instead. Of importance to my topic, however, is that a critical element is retained

148 S. B. Boyd

123

within this approach in order to acknowledge that unchosen attachments can be

problematic, especially for women (Leckey 2008, p. 10).

Robert Leckey identifies two strands, or unacknowledged tensions, within

relational theory and argues that its insights can be sharpened (Leckey 2008,

pp. 12–17). The weak version of relational theory is content neutral, descriptive and

focused on methodology (a focus on relationships), whereas the strong version

offers a more specific normative vision about the types of relationships that should

be regarded as desirable. These ‘thick’, interdependent relationships (ideally)

enhance the autonomy of each individual involved, such as relationships with

family members (Leckey 2008, pp. 15, 20–21). Some relational ties, however,

threaten autonomy, as we saw above, so that defining the criteria by which to

identify constructive relationships is crucial. The work of some relational theorists,

for example Jennifer Nedelsky (1989), manifests both the weak and strong versions.

Leckey suggests that slippage often occurs between the two conceptions, with the

weak version tending to slip into the strong. He favours the latter version, which

offers more analytical capacity, for application in family law, and it is this version

that I shall build on.

The strong version of relational theory is, Leckey suggests, quite simply, a

‘‘feminist political project’’ (Leckey 2008, p. 17) and feminists have indeed drawn

on it, including in relation to women’s reproductive issues (e.g. Donchin 2009). Yet

how to apply relational autonomy in particular contexts is potentially fraught, as

Jonathan Herring has emphasised in his work on rape (Herring 2009). It may well be

that ‘‘[t]o be autonomous, in a relational sense, is to be responsive and responsible to

others, and interdependent within complex networks of relationships’’ (Jackson and

Day Sclater 2009, p. 6). But being responsive and responsible to others remains a

highly gendered concept, especially within the heterosexual family, with women

tending to take more responsibility—and feel more responsibility—for the care of

others than men tend to. In emphasising the importance of care, relationships and

connection, there is a danger that a woman’s interests and her autonomy may be

overridden in the name of the family (and all the assumed social norms about

women’s roles within families). Herring does not reject relational autonomy in his

work, despite his caution that feminists should be wary of any suggestion that in its

name, women’s autonomy should be sacrificed for the common good. Instead, he

shows that in the context of heterosexual sexual relations, the question of ‘consent’

is shaped by the larger context, including ‘rape myths’ such as that women ‘‘like it

rough’’ (Herring 2009, p. 64). To understand when meaningful consent has been

given, the legal system must take that larger social context into account. In the child

custody context, I would suggest that the larger social context discussed earlier in

this article is key to understanding (a) the choices women make when parenting; (b)

the difficulties that post-separation parenting disputes pose in the face of complex,

gendered relationships; and (c) what sort of parenting arrangements are appropriate.

Leckey argues that Canadian family law now assumes and produces ‘‘contextual

subjects’’, that is, ‘‘subjects regarded as rooted in their relationships and social

settings’’ (Leckey 2008, p. 3). The self-sufficient liberal individual who is

autonomous (in the liberal sense) and rational in his choices has, Leckey says,

been supplanted by this new, contextualised legal subject. Iconic Supreme Court of


123

Canada cases that illustrate this transition include Moge v Moge10 on spousal

support and women’s economic disadvantage and Baker v Canada,11 an immigra-

tion case about a mother and child. Both majority decisions were authored by

former Justice Claire L’Heureux-Dube, known for her contextual approach to

judging, her invocation of social science studies and her attention to inequalities. In

Baker, a case involving the deportation of a Jamaican woman who was a non-status

migrant in Canada (an ‘overstayer’), the Court emphasised the significance of the

filial relationship between the woman and her Canadian-born children.

As we have already seen, the notion of autonomy—particularly an atomistic,

individualist notion of autonomy—is particularly fraught when considered in

relation to parenting, and a relational approach to autonomy is arguably inevitable in

this field. The caregiving relationship a mother has with a dependent child

constrains her autonomy, at least in the liberal individualist sense of the word, and,

in most contemporary societies, this relationship creates a derivative dependency in

the mother regardless of the pleasures of parenting. The ideology of motherhood

outlined above can shape, even constrain a mother’s potential for autonomy as well,

although this need not be so. Against this backdrop, the normative imperative for

shared parenting further impedes a mother’s capacity for self-determination, even

when she is ostensibly single parenting. If the highest truth of good parenting is

taken to be facilitation of a child’s relationship with the father, almost regardless of

the circumstances, a mother’s own autonomy interests are subordinated.

If, from a feminist perspective, this subordination is unacceptable, we can ask

what law and society might do differently to enhance women’s relational autonomy

in the parenting context. An individualistic approach to a mother’s choices is both

unrealistic and works against the impetus of a relational approach, so a focus on the

nature and quality of the relationships surrounding a mother’s parenting is essential.

At a social level, one might suggest that maximising a mother’s autonomy requires

‘‘social and community-based structures which will enable human interactions to

flourish’’ (Herring 2009, p. 57). Parenting a child might ideally involve multiple

adults and/or greater societal involvement in care for children, so that the onerous

responsibilities do not fall on one individual (usually a woman), thereby unduly

limiting her autonomy. But remedies such as these are unlikely to emerge in the

context of neo-liberalism and of privatised family law disputes; certainly they

cannot be ordered in a dispute between two parents (although some parenting plans

might involve a third party such as a grandmother). Critically, though, an approach

that says that ‘both’ parents must have contact with a child in order to ensure the

child’s wellbeing is not the same thing as providing greater social and economic

supports for mothers. The responsibility cast upon mothers to ensure contact

between children and fathers can be both a burden and a constraint on maternal

autonomy. It can increase a woman’s burdens without giving her any more social

support as a mother; it privatises her responsibility.

What does all this mean for legal norms? Mavis Maclean and John Eekelaar have

pointed out that it is

10 Moge v Moge [1992] 3 SCR 813, 99 DLR (4th) 456.11 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817, 174 DLR (4th) 193.

150 S. B. Boyd

123

hard for the law to allow complete autonomy to two people in dispute who are

party to a joint enterprise—parenting—when not only are they in conflict, but

the interests of the child and the state have also to be taken into account.

(Maclean and Eekelaar 2009, p. 93)

At the same time, they suggest that the system can—and I would add should—seek

a resolution that gives as much scope as possible to the autonomy of each parent and

they point to some important process points. For instance, in difficult, conflicted

cases over contact, the work of the family barrister is crucial and there is a role for

courts in redressing potential domination of weaker parties and protecting the

interest of the children. Legal norms must permit lawyers and judges to perform this

role, even in the face of increased emphasis on (sometimes mandatory) mediation

and collaborative methods that has accompanied the normative rise of shared

parenting. Becky Batagol’s research also supports the important role that lawyers

can play in redressing the vulnerability of (female) clients in negotiating family law

disputes (Batagol 2008). Legal norms should also encourage lawyers to engender a

sense of self-trust (Goering 2009) in their mother-clients, so that they do not bow

too readily to normative pressure to share parenting in inappropriate circumstances,

in contrast to shared parenting norms, which tend not to permit this flexibility. The

preoccupation with elevating maximum contact through the language of shared

parenting currently creates a pressure generated by mediators, mental health

professionals, judges and lawyers to agree to some form of joint custody (McCarthy

2009).

The fact that the best interests test is the defining legal principle in children’s law

presents an obvious barrier to centring the autonomy interests of mothers in this

legal field. Although the ‘‘open-ended ‘best interests’ rule is an obvious invitation to

contextual assessment’’ (Leckey 2008, p. 81), plenty of research demonstrates the

uneven effects of the open-ended best interests test, which tends to incorporate

dominant societal assumptions that may work against the interests of disadvantaged

groups such as women and marginalised communities (e.g. Baldassi et al. 2010;

Kline 1992). As a result, we should be cautious about ‘‘uncritical calls for more

contextualism’’ (Leckey 2008, p. 81). Leckey suggests that the difficult question

often is not whether contextualism is appropriate or not, but whether something is

appropriately included within a relevant context or excluded from it. He indicates

that ‘‘[a] context will come into view shaped by the already existing relationships’’

(Leckey 2008, p. 268).

Efforts have been made by many feminist legal scholars and activists to refine the

best interests test in a way that would temper the power of normative shared

parenting, precisely by looking at such existing relationships and distinguishing

between the types of relationships in a child’s life. Some feminists, including

myself, have proposed that a primary caregiver presumption should be incorporated

into child custody determinations, while others have suggested that there should be

a presumption against custody or access being awarded to an abusive parent (for

examples, see Boyd 2003, chaps. 7 and 8). The suggestion is, at a basic level, that

the best interests test should not take the form of a de-contextualised formal equality

between fathers and mothers, with shared parenting as the normatively desired


123

outcome. Instead it should look at the context and lived relations of the family,

including past patterns of care and responsibility (which may well have involved

primary caregiving responsibility by mothers), any controlling or abusive conduct,

and meaningful engagement with children.

Similarly, from a psychological perspective, Jennifer McIntosh has recently

suggested, based on research suggesting that it is wrong-headed to encourage all

parents to ‘‘give shared parenting a try’’, that we need to bring finer distinctions to

our inquiries than have typically been made about shared parenting (McIntosh 2009,

p. 397, quoting Smyth 2009). Her relational approach would ask questions such as

‘‘[w]hat are the influences of various shared care climates and patterns on each

parents’ [sic] emotional availability to their children?’’ (McIntosh 2009,

pp. 397–398). For instance, the imposition of a rigid shared arrangement might

impede parents from adapting arrangements to their children’s developmental

needs.

I would add that the wider social setting must be considered, including the

ideology of motherhood, the sexual division of labour, and power relations within

the family, as discussed above. This wider context assists in highlighting any gender

asymmetries that should be considered when making decisions about appropriate

parenting arrangements. In turn, women’s autonomy issues may come more sharply

into focus even in an area of law that affirms the importance of relationships. As

Davina Cooper has suggested, looking at inequalities only in terms of the binaries of

social location (such as fathers and mothers) is insufficient (Cooper 2004, p. 52).

Instead, we need to look also to the normative principles that create subordinate

positions occupied by those who fail or refuse to live in accordance with prevailing

norms. For women in custody disputes, resisting prevailing norms may mean not

living according to dominant norms of motherhood; or failing to live up to the

demanding norms of post-separation parenting that may overvalue contact between

fathers and children. It may also mean escaping relationships that are exploitative or

demeaning. We need a framework that enables an understanding of and accounting

for how current post-separation norms and discourses gloss over the inequalities—

economic and otherwise—that complicate parenting relationships. We also need a

framework that does not unnecessarily prevent women from distancing themselves

from problematic relationships (Ball 2005, p. 95) or (drawing here on Goering’s

(2009) notion of self-trust) encourage them to question their own judgement about

what is best for themselves and their children. This approach ‘‘envisages autonomy

from within structures of power and authority’’ and is ‘‘sensitive to structural

inequalities and material conditions in the position of women’’ (Donchin 2009,

p. 38).

A nuanced focus on the quality of relationships and their relevance to parenting

and children’s interests has been offered by Carol Smart and Bren Neale (1999,

pp. 192–199), who argue on the basis of their empirical work that abstract notions of

child welfare should not form the basis of decisions. Instead, the focus should be on

the principle of actuality (for example, looking to the needs and wishes of children

as well as practical realities such as who the primary carer has been and whether

there is a climate of coercion and fear); the principle of care (placing the child

within a set of relationships, placing less emphasis on rights, and taking into account

152 S. B. Boyd

123

the need to care for parents as well as children); the principle of recognition of

selfhood (with a focus on women that suggests an interest in their autonomy, even

though this language is not used); and the principle of recognition of loss (which,

they suggest, may not be appropriate for legal resolution). Smart and Neale appear

to intend to replace the child welfare or best interests principle, at least when they

discuss the principle of care (1999, p. 193), raising the possibility that this principle

may need to be questioned or abandoned in order to avoid the problems inherent in

its recent re-interpretation as normative shared parenting.

Feminist legal scholars must, then, consider that resorting to the best interests test,

even if refined along the directions mentioned above, may not have the capacity to

address women’s autonomy concerns, precisely because ‘best interests’ is now

essentially interpreted to be shared parenting, barring exceptional circumstances. It

may be impossible to make women’s relational autonomy interests a key component

of the best interests principle, due to its emphasis on children’s interests and the way

that dominant ideologies have informed its interpretation. Some other way may be

needed to place the legitimate autonomy interests of mothers into play in parenting

disputes. Possibly a legislative emphasis on the ways in which current parenting

norms can compromise women’s equality interests is feasible. In the Canadian

context, where we have a constitutional equality guarantee, mothers who have been

forced to continue a relationship with an abusive partner in the name of their

children’s best interests have asked why their equality interests should not be

considered in child custody disputes. While recognising the fraught debates over the

meaning of equality, it may be possible to consider legislative reforms that limit the

extent to which women’s interests can be compromised in the name of paternal rights.

The way in which relationships are defined and considered is crucial to how we

think about law reform in this field. Specifically, it is not adequate to consider only

the relationship between those involved in a parenting dyad, but rather the wider

relational context must be brought into sight. Autonomy scholars working in other

fields have emphasised this point. Herring argues that in the case of rape, ‘‘consent

must be understood in the context of the interactions between the parties prior to the

event, the relationship between the parties, and the wider social setting’’ (Herring

2009, p. 53). Goering (2009) adds that developing meaningful autonomy (in making

post-natal decisions) requires attention to the coercive effects of oppressive social

norms. Donchin (2009) argues that reproductive autonomy must include respect for

women’s human rights and an appreciation of the political and legal contexts that

shape their options. The legal system is a challenging forum within which to try to

incorporate larger socio-economic and political questions and the affiliation of

family law with the ‘private’ sphere makes such incorporation even more difficult.

Nevertheless, I would suggest that an effort must be made to use critical work on

relational theory and autonomy in order to do so.

Conclusion

This article has identified the ways in which women’s autonomy interests are

compromised in the current climate of normative shared parenting and has argued that


123

these compromises are not always acceptable. I have also suggested that in

determining the rights and responsibilities that adults should have in relation to

children, especially where there are disputes, the legal system should rely less on a

notion that rights should automatically accompany genetic definitions of parenthood

and focus more on relational aspects of parenting, including its wider social context.

This approach should promote women’s relational autonomy, taking account not only

of the quality of their parenting relationships but also of the broader social context

within which they engage in parenting. Judges in family law typically pride

themselves on their ability to distinguish fact situations from one another and to apply

flexible norms to these varying situations. They should, in theory, then, be well

equipped to make the finer distinctions outlined above and, indeed, we do see evidence

of their ability to do so in some cases. It would be helpful if normative frameworks

guided them in their application by directing them towards significant factors.

These relational factors would include both factors connected to the relationship

between the adults and the relationships between the adults and the children, as well

as the larger relational social context (that is, the gendered division of labour,

violence against women, and so on). For instance, factors informing decisions about

parenting disputes would include: past patterns of care and responsibility, including

primary caregiving; the type of relationship each parent has with a child; whether

there have been patterns of domination, or worse, a climate of coercion and fear

between the adults or between the adult(s) and children; whether the parents have

elected a shared arrangement; degree of geographical proximity between parental

residences; ability of the parents to get along well and communicate; confidence in

the other parent’s parenting competence; and what the impact of proposed

arrangements on a caregiver’s ability to be emotionally available and attentive to a

child and the child’s views and needs would be (cf. Smart and Neale 1999,

pp. 192–197; McIntosh 2009).

In Story #1, the relocation case I started out with, the following factors arguably

should have been given more weight: the mother’s history of primary caregiving;

the fact that the marriage had been short and had ended before the child was born;

the care and responsibility that the mother had shown in making her decision to

relocate so as to best accommodate the father’s contact (thus showing a concern to

balance her parental responsibility to the child and the other parent with her interest

in economic autonomy); and the overall interest that society should have in

facilitating women’s economic autonomy alongside their childcare responsibilities.

Story #2 (the IVF scenario) is more difficult for many people, precisely because

the mother explicitly tried to delineate the parameters of her familial autonomy in a

manner that accorded the genetic father (sperm donor in her mind) far less than

equal parenting rights. Under current norms, which expect facilitation of contact,

this mother did not appear to be a ‘responsible’ parent citizen and, indeed, that is

precisely what the Alberta court concluded. They were not at all convinced by the

mother’s form of ‘attachment’ parenting.12 Nevertheless, this admittedly difficult

12 Supra n 3 at [6]. Although we seem generally content to allow parents to adopt their own parenting

styles, short of actual harm to a child, once a dispute arises, it seems that they can be taken to task for their

choices.

154 S. B. Boyd

123

case requires us to consider the question of reproductive labour and maternal

autonomy. The following factors arguably should have dictated against the original

joint custody award: the fraught nature of the adult relationship, which had been

both short and had never involved cohabitation; the original intention of the mother

to parent on her own and the efforts she went through to do so (IVF etc.); and the

high conflict between the adults. The later parallel parenting award is perhaps more

difficult, as by then the father had established a parenting relationship with the

twins. Yet concerns have been raised about the efficacy of parallel parenting in high

conflict cases, just as they have regarding joint custody:

while perhaps well intentioned, parallel parenting is deeply flawed, reflecting

less a concern with the best interests of children than judicial resistance to the

imperative to ‘choose’ between parents, a narrow and formal conception of

parental equality, and an unstudied faith in the ability to compile co-operation

between hostile litigants. (Epstein and Madsen 2004, p. 2)

A relational approach would require attention to the potential for healthy,

cooperative relationships between the adults themselves, and the adults and

children. For mothers who attempt to achieve a degree of autonomy from what they

regard as unhealthy relationships, this approach may afford some greater degree of

ability to determine the terms under which they parent.

The difficult question is whether the best interests principle and socio-legal

policy generally can find space for this type of parental asymmetry and autonomy in

a time of rising fathers’ rights and gender convergence. We do see evidence that

policy makers and judges can sometimes resist a non-nuanced gender convergence.

Joint custody awards that give one parent primary residence or decision-making

power, which are common in Canada, are one example. Alberta’s law on sperm

donors, which states that a sperm donor is not to be recognised as a legal parent

unless the mother is his spouse or a person with whom he has been in an

interdependent relationship of some permanence, is another.13 Canada’s Minister of

Justice has asserted that children’s interests rather than a fathers’ rights must take

priority, in reacting to a question about the latest private member’s bill to propose

the introduction of ‘equal’ parenting to divorce law.14 And Australia has begun to

re-assess its controversial shared parental responsibility law, particularly in light of

concerns about its impact on family violence (Overington 2009). The norms that are

put in place to guide decision-makers are of crucial importance. If, instead of formal

equality rights, relational autonomy can be emphasised within modern laws

regulating disputes between parents who live apart, the ability of mothers to

determine the direction of their lives may be affirmed.

13 Supra n 2.14 Bill C-422, An Act to amend the Divorce Act (equal parenting) and to make consequential

amendments to other Acts, First Reading, 16 June 2009, second session, Fortieth parliament, 57–58

Elizabeth II 2009. The Minister’s statement, made at a Canadian Bar Association Annual Meeting in

Dublin, was reported by O’Neil (2009). However, the minister also emphasised that his government had

not yet taken a formal position on the bill.


123

Acknowledgments The author acknowledges funding support from the Social Sciences and Humanities

Research Council of Canada and the UBC Law Class of ’68 Award, research assistance by Eiad el Fateh

and Bree Makohn, and the constructive feedback of two anonymous referees as well as audiences at the

5th World Congress on Family Law and Children’s Rights in Halifax, Nova Scotia, 23–26 August 2009

and the Centre for Feminist Legal Studies Lecture Series, University of British Columbia, 19 January

2010.

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