Constance Backhouse

Women's Legal History in Canada and Australia: A Case for Comparison

Austrian and Canada legal authorities generally indicate that the first half of the twentieth century constituted the high-water mark for mother's rights in child custody law. During this period, both countries are assumed to have fully shifted away from the traditional English common law position favoring the father as patriarch of the family. Concepts such as the "mother factor" and the "doctrine of tender years" are often cited to explain how the case law constructed a practical presumption proclaiming mothers the preferable custodial parent. This paper will consider all the reported cases in Australia and Canada between 1900 and 1950 to determine whether the evidence warrants such assumptions. It will compare the judicial predispositions from both commonwealth countries, to examine whether the "mother factor" was real or rhetorical. It will assess the patterns in reported child custody law in both jurisdictions, to compare how the law served to divide rights, responsibilities and privileges between mothers and fathers. It will also consider selected representative cases that serve to highlight the wider trends and patterns. The paper will draw upon the child custody jurisprudence to ascertain how legal institutions functioned to allocate status and power on the basis of gender. It will also compare the social, economic and political context against which custody law evolved in the two countries.