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Tuesday, July 16, 2013

Cameron, Gruben and Chaisson on Irene Murdoch case on SSRN

Angela Cameron, Vanessa Gruben and Angela Chaisson have posted The Courts Have Turned Women into Slaves for the Men of this World: Irene Murdoch's Quest for Justice on SSRN. This essay is published in James Muir, Eric Tucker and Bruce Ziff, Property on Trial: Cases in Context, a 2012 publication of the Osgoode Society in conjunction with Irwin Law. 

Here's the abstract:

In 1973 the Supreme Court of Canada issued a ruling in Murdoch v Murdoch, denying Irene “Ginger” Murdoch an interest in the cattle ranch that she and her husband, James Alexander “Alex” Murdoch, had built together over many years. Irene performed extensive manual labour on the farm, including driving, branding, vaccinating and de-horning cattle, haying, raking, and mowing. She often did this work alone due to long, off-ranch, work-related absences by Alex. When their marriage began to break down, Irene sought to receive her ownership interest in the ranch property. However, the certificate of title to the property showed that the land belonged solely to Alex Murdoch. For Irene to receive an interest in the property it would be necessary for a court to declare that a portion of the title to the ranch was held by Alex Murdoch in trust for his wife. The principal basis for finding such a trust, her lawyer argued, was her contribution through labour to the ranch operations. That argument was rejected at trial and ultimately also by the Supreme Court of Canada, which held that under existing Canadian law no property claim was available to Irene Murdoch in the circumstances of her case. 

In one sense, the case was unremarkable. Irene Murdoch’s circumstances reflected the socio-economic reality of many Albertan farm wives, in fact most married women in Canada, during the 1960s and 70s. Cultural and legal perceptions of farms had been profoundly shaped by the traditional belief that “men farm, women help” and remained an omnipresent example of the invisibility of women’s work. While husbands no longer subsumed their wives’ legal and financial identities (as was the law in Alberta until 1915), anachronistic matrimonial law, as well as hierarchical farming and family structures subjugated wives, forced them into positions of dependency, and often trapped them in relationships. Those who left their husbands often found themselves invisible under the law, and left their marriages with nothing. The case reports were replete with decisions similar to that in Murdoch, almost all unsuccessful. In these and other cases, women worked on family farms and in households held in their husbands’ names and were left without proprietary interests at the relationship’s dissolution. Behind these, there are likely unreported judgments to the same effect, as well as many instances in which no claim was advanced owing to the perceived futility of such a tack, the absence of the needed resources to take legal action, or myriad other personal factors. 

What is exceptional is that the Murdoch case prompted outrage in Canada and undoubtedly contributed to law reform that sought to ameliorate the plight of women in the position of Irene Murdoch. Her circumstances provided an important narrative tool to feminists and other advocates for law reform. Canadian women identified with Irene, and became conscious of how easily they could find themselves in a similar situation. Women’s groups mobilized around her experience, stood up to say “I am an Irene Murdoch,” and successfully secured reforms to Canadian marital property law regimes. 

None of that would have been possible had it not been for Irene Murdoch’s personal determination — and that of her lawyer, Ernest Shymka — to bring her case to court in the face of formidable obstacles. Irene suffered extreme violence at the hands of her husband, had little money and even less desire for public fanfare, and faced an uphill legal battle. Yet she and Shymka pursued the case to the Supreme Court of Canada. 

Much has been written about the political and legislative consequences of this decision. This chapter looks at the Murdoch case through two lenses. The first is through the personal account of Ernest Shymka. The second is by framing the case as part of a larger feminist movement for law reform, including reform to matrimonial property regimes. Murdoch was not only the product of personal struggle by Irene and her lawyer; it was also a pivotal event within the Canadian women’s movement.

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