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Canada has an enviable record of relatively progressive and egalitarian legislation and policy in relation to Canadian family forms. The country's constitutional guarantees of equality and multiculturalism provide the legal foundation for this record. In particular, Canada's leadership in the recognition of and support for same-sex relationships in family law and social policy is widely acknowledged. This is, however, also deeply contested terrain: Feminist legal scholars informed by critical political economy argue that recent family law advances in Canada sit compatibly with neo-liberal social policy and restructuring of the welfare state; the neo-conservative and religious right assert that the fundamental nature of family has been undermined by the recognition of same-sex marriage, facilitating the legal recognition of polygamous relationships, among others. Still others take the view that despite a liberal, progressive and formally egalitarian approach to family, the legal recognition of same-sex marriage in Canada reflects and reinforces a historically patriarchal heterosexual institution that should be jettisoned rather than embraced. These arguments raise issues and illustrate more generally the tensions in state and legal construction and regulation of familial relations - historically and in the current context. In this Article, I re-theorize the significance of patriarchy and the relationship between patriarchal relations and the discourse of privatization in critical family law. Using the experience of women from the "outskirts" - lesbian spouses, welfare mothers, and women in polygamous relationships - I demonstrate the limits of any theory of "privatization" that does not theorize patriarchal relations. In particular, I identify and analyze the impediments to equality posed by increasingly invisible, but no less enduring, patriarchal familial ideologies in order to envision forms of family law reform and state social policy that might actually improve gendered and generational familial relations and transform the social landscape more generally.

AbstractThe limits of the normative nature of law may be illustrated in the current English Canadian context by apparently contradictory phenomena: legal defeats of welfare mothers (e.g.MasseandFalkiner), and the legal victories of lesbian mothers (Re K). Drawing upon Fine, this paper employs the analytic frame of form and content to analyse contradictions within the legal form, notably in respect of the definition of spouse and the regulation of relations of property and poverty, and the struggles of lesbian parents who have applied to the courts to formalize their relationships to their children by way of adoption, and who, in so doing, have challenged the normative content of spousal relations. In analysing law as a gendering strategy, it is necessary to be mindful that law may not be the dominant site through and in which gender relations are constructed, regulated, reconstructed, or resisted. In this paper, the author examines and analyzes the contradictions in the legal form that have been mobilized, the 'stirring up' of the content that has been done, and the constraints and limits that shape the results.

In this article the author addresses the theoretical and political challenges issued to feminists and feminist scholarship by recent debates and litigation concerning "family" and "family-based" benefits. The argument proceeds in four parts: first, the discussion is relocated within socialist feminist theory. The implications of the qualified pro-family stance in the critiques advanced or influenced by women of colour is considered next, followed by an examination of some proposals to extend the definition of "spouse" and "family" to lesbian and gay relationships. The author is critical of both "critiques" and illustrates with reference to Canadian welfare and immigration law that feminists, lesbians, and gays must be attentive to the complex and contradictory implications of family-based strategies.

The dismantling and restructuring of Keynesian social security programmes have impacted disproportionately on women, especially lone parent mothers, and shifted public discourse and social images from welfare fraud to welfare as fraud, thereby linking poverty, welfare and crime. This article analyzes the current, inordinate focus on 'welfare cheats'. The criminalization of poverty raises theoretical and empirical questions related to regulation, control, and the relationship between them at particular historical moments. Moral regulation scholars working within post-structuralist and post-modern frameworks have developed an influential approach to these issues; however, we situate ourselves in a different stream of critical socio-legal studies that takes as its point of departure the efficacy, contradictions and inherently social nature of law in a given social formation. With reference to the historical treatment of poor women on welfare, we develop three themes in our critical review of the moral regulation concept: the conceptualization of welfare and welfare law, as illustrated by welfare fraud; the relationship between social and moral with respect to the role of law; and changing forms of the relationship between state and non-state institutions and agencies. We conclude with comments on the utility of a 'materialist' concept of moral regulation for feminist theorizing.