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Thursday, April 06, 2000

Celebrating a reluctant feminist heroine
REVISITING THE COURT'S KEY CASES: From its 1973 decision that an Alberta farm wife seeking a divorce -- after 25 years of marriage -- was not entitled to half of her husband's ranch, to its definition of the nature of aboriginal title, to its controversial gay rights decision against the province of Alberta, the court has defined itself by its landmark rulings
Robert Remington
National Post

CALGARY - In a controversial decision on matrimonial property, the Supreme Court ruled in 1973 that Alberta farm wife Irene Murdoch, in seeking a divorce from her husband, James Murdoch, was not entitled to a half share in their ranch property because the work she did was, in the words of the court, "the work done by any ranch wife."

Mrs. Murdoch, as a result, got none of the $95,000 proceeds from the sale of the couple's property at Black Diamond, Alta., despite evidence that she had done more than 50% of the labour on the ranch in 25 years of marriage.

The court's decision caused a national outcry that produced reforms in provincial matrimonial property laws across Canada. Within three months, it also vaulted Bora Laskin, the lone dissenting judge, to the position of chief justice, passing over Ronald Martland, the senior judge who wrote the majority 4-1 decision rejecting Mrs. Murdoch's claim.

"The reputation of the Supreme Court was damaged in the minds of many," according to Ian Bushnell, author of The Captive Court: A Study of the Supreme Court of Canada. "In the public mind, Laskin's promotion would be viewed as an approval of judicial law reform and a rejection of the approach of the majority. The very function of a judge of the final court of appeal was at issue."

Until the Murdoch decision, a woman going through a divorce wasn't entitled to any equity built up over the life of the marriage if she hadn't financially contributed to the purchase of the property. Matrimonial property laws subsequently enacted by the provinces made property acquired after a marriage the joint holdings of a husband and wife.

Today, the name of Irene Murdoch is celebrated in feminist law, but Mrs. Murdoch was a reluctant feminist heroine. A group of Alberta women who helped Mrs. Murdoch with her $65,000 legal bill lost track of her after the case and say she never wanted the attention she received.

"She just seemed to retreat in the background," said Calgary author Nancy Millar, one of the co-founders of the Famous Five Foundation, a non-profit group named after the five women who forced Parliament in 1929 to recognize women as "persons" under the law.

"She was very glad to get out of the public eye. You don't pick your heroines, they are created, and she never intended to be anybody's role model."

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