Women as Persons and Property: A Historical Reflection

When looking at legal rights relating to women and children from a historical perspective, you can immediately see that there has been an unfair balance of power based on gender inequality with women struggling greatly throughout history due to their inability to have basic human rights and protections within Canadian law.  In fact, women and children were generally disempowered for most of the twentieth century, considered legal property equivalent to an animal and were financially dependent on men or the state for their very survival.  How do women and children’s rights fit into this conversation?  What is the history of their formation, how is family law so intimately intertwined and what modern practices have been implemented in recent years to better protect women and children?

A Historical Perspective of Women as Persons and Property:  Persons Case

When discussing the rights of women in Canada, one must look to the Persons Case that was submitted to the Supreme Court of Canada and then the Privy Council in England in the late 1920s.  At the time, women were not seen as persons due to the interpretation of what was written in the British North America Act of 1867 that stated, “The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate.” Men surmised that “persons” related only to men as did the Supreme Court of Canada when they returned an answer of no to the Famous Five using these arguments: “The British North America Act in 1928 had to maintain the meaning “persons” would have been given by the courts when it was passed in 1867, according to common law, women could not hold political office, if the British Parliament had intended for women to be included as “qualified persons” under section 24 of the Act, it would have said so” (Persons Day).  In a stunning reversal of the Supreme Court of Canada’s decision, Lord Sankey, then Lord Chancellor of England, gave an answer of yes, that women were indeed persons.  He eloquently stated his opinion “The exclusion of women from all public offices is a relic of days more barbarous than ours.  And to those who would ask why the word ‘person’ should include females, the obvious answer is, why should it not?” (Rights of Women).

British Common Law: Rooted in Formality   

I find the concept of universal morality to be very interesting as it is based on the idea that we all share the same moral compass and a universal need to follow acceptable social practices to create a fair and just society for all.  The problem with the concept of universal morality is that not all people share the same set of values or have identical social abilities.  This is especially true with children who are often at different developmental stages based on age. “Another problem is that moral judgement and principles are broad, general ideas.  Relying on moral principles to define the legitimacy of a particular laws in discerning those principles that are truly universal and morality varies between cultures, influenced by the circumstances of power and is dependent of individual subjective views” (Looking At the Law).

When using a historical and retrospective lens, it isn’t hard to understand why women and children were given such little consideration in terms of rights and laws when those responsible for drafting and passing legislation were predominantly white male, elitist society members who deemed women and children as property.  Many laws were created to reinforce a capitalist society and the process of criminalizing behaviour viewed as undesirable, meant that impoverished women and children were penalized based on their gender and social circumstance.  The formation of vagrancy laws for example criminalized poverty and villainized poor women and children when the reality is they had been systemically disenfranchised by society and the formation of common law itself. 

“Vagrancy laws imported to Canada from England during the mid-1800s criminalized the status prostitute, merely being a prostitute was sufficient to evoke a criminal charge.  A prostitute who could not explain her presence in a public place to a police officer (or any woman who could not give a satisfactory account of herself was arrested” (Department of Justice).  “Police identified a “common” prostitute by issuing a warning about her suspected involvement in the sex trade and then used it against her if a subsequent vagrancy charge was laid.  Legislation during this period (circa 1867) did not provide special protection for young prostitutes, as children were seen as small adults who reached social and sexual maturity at an early age and were accordingly not entitled to special protection by the law” (Department of Justice).  Luckily there have been numerous advancements in relation to equal rights for women and establishing the basic rights of children.

Advancements in Child Protection Laws and Rights: Geneva Convention the Declaration of the Rights of the Child

One hundred years ago, the League of Nations adopted a declaration which held that “mankind owes the Child the best it has to give” (United Nations Documents).  This was the first step in the international scene to making the life of a child safer and to give them rights that previously they might not have been afforded.  Fast forward thirty-five years and the “UN General Assembly adopted the Declaration of the Rights of the Child, which defines children’s rights to protection, education, health care, shelter, and good nutrition.”  In 1989, the United Nations held another convention to discuss the rights of children and ratified a new document that saw children “as human beings with a distinct set of rights instead of passive objects of care and charity” (United Nations, Children).  In 1991, the convention was signed and has since gone on to explain to those living in Canada that “children have the right to give their opinions in all matters that affect them and to have their voices heard” (National Child Day).

Moral and Legal Obligations: Family Law

Canadian family law is governed by section 91 (26) of the Constitution Act of 1867, meaning that marriages and divorces are the exclusive jurisdiction of the federal government. There are many examples in our history that show the unfair power transfer between men and women with the harmful formation of discriminatory practices that kept women and children at-risk of victimization.  I am personally very fascinated by the idea of moral and legal obligation with respect to how we treat one another, whether through socially constructed relationships such as a husband and wife or how we navigate the world as legal entities through such extension as business dealings.  Contract law and domestic agreements are also of high importance since they show us that power structure dynamics exist between sexes and highlight the discrepancy in the living standards of women during marriage and throughout the separation process.  P.S. Atiyah focuses on the guiding principle of contract formation as “reciprocal benefit” with acts of “reasonable reliance” between two people, explaining that there is a different level of expectation when making a promise to a spouse as opposed to that of a stranger which strengthens the overall gesture of promises made between two cohabitating people.  Unfortunately for many women, they found out the hard way that an implied promise made by a spouse may not be legally binding which stresses the importance of seeking legal representation early in case of a relationship breakdown to protect your rights and ensure the drafting of a fair settlement agreement.  Often, agreements are unenforceable if not witnessed and signed by both parties (Just Between the Law and Us).

A Case Summary of Pelech v. Pelech

The case of Pelech v. Pelech revolves around a husband and wife that were married in 1954 and ran a general contracting business during their domestic partnership to which Mrs. Pelech contributed to via labour, acting as a bookkeeper until the mid 1960’s during which time she was diagnosed with “serious psychological problems” which contributed to the breakdown of the marriage and subsequently provided the foundation for the award of permanent maintenance when their divorce was granted on May 1, 1969 by the British Columbia Supreme Court (Just Between the Law and Us).  At the time of the divorce, Mr. Pelech had a net worth of $128,000.  Fifteen years later, there was a petition to revisit that order as his net worth had grown to $1.8 million standing in stark contrast to the financial situation and lifestyle prospects of Mrs. Pelech whose disability had become so debilitating that she couldn’t support herself and had tapped into her maintenance fund to avoid poverty.  By 1982, the fund was completely depleted and Mrs. Pelech was dependent on welfare to survive. The court decided to uphold the original agreement and stated that her “inability to care for herself predated her marriage and found that because she was represented by legal counsel, was able to act freely in forming the agreement” (Just Between the Law and Us).  In my opinion this case represents a wide-spread, gender-based inequality showing a real-life example of historical discrepancy between spouses in the living standards of women after the breakdown of a marriage.  The legal outcome of the case reinforces the idea that once a marriage is over, each person should be released of the legal obligation to one another forever.  I view this case as a representation of morality failing as I can’t imagine not supporting a previous spouse if they were experiencing such duress later in life, especially if we shared children, whether young or grown and had the financial means to do so.  The case of Pelech v. Pelech is the perfect example of the conflict that exists between moral and legal obligations.

Addressing Gender Inequality: Introduction of The Family Law Act

Women have long been at a disadvantage when it comes to divorce and the negotiation of fair settlement agreements.  This is based on gender inequality and the patriarchal structure of early Canadian society which impacted how and why our laws were formed.  As early as 1884, married women began to see a change in what legal rights they had.  The Married Women’s Property Act in Ontario and Manitoba gave married women in these provinces the same legal rights as men, which allowed women to be able to enter into legal agreements and buy property (Rights of Women).  Depending on which province you lived in, some women were more fortunate than others with respect to the legal rights they had if they were married.  One example of gender inequality and legal disadvantage would be that of married women in Quebec who were the last group to receive legal rights to vote in municipal elections in 1941 (Elections Quebec).  This was due to the view of French-Canadian society that the women were meant to raise the families and stay in the home.  Like other married women, this left them at a disadvantage should the marriage breakdown resulting in divorce as many were left without rights to spousal support or equitable distribution of assets.  As you can see in the Ontario Family Law Act of 1990, remedies were made to rectify these past grievances to create a more even playing field for all Canadians while considering the needs of the overall family including children of the marriage.  The stated purpose of one section in the Family Law Act was “to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection.”  These progressive and just provisions made the separation or dissolution of marriages easier thus creating stronger safeguards for women and children overall. 

The subject of persons and property has taken on an entirely new meaning as I reconcile what life would have been like for my great-grandmother Irene, a woman who was born in the early 1900’s with limited legal rights and economic resources.  I wish I could show her how much the world has changed and tell her that someone in her family has gone on to study law and feminist thought.  Likely something, she never imagined in her lifetime as a real possibility for her own descendants.  

Mary L, Millie, Irene 1939 Galt Ontario.