On the Poverty of Responsibility_ A Study of the History of Chi-8-454

Chapter 1: Introduction:

On the “Poverty of Responsibility”:

A History of Family Law for the Poor

This thesis is about families in poverty. It is about how law has helped to construct

the family in such a way as to address this poverty. This might seem counter-intuitive as

we generally understand the state and government – ie., the public sphere – as having

responsibility for the social welfare programs that help people in poverty. The family, by

contrast, is a sphere of private, domestic relations, which has little or nothing to do with

the work of government or helping the poor. We generally understand families as natural,

organically formed kinship groups which are outside the concerns of politics or

government.

In this thesis, however, I will show that through history, the “natural” family has

shifted form in response to larger social and economic goals. Early women’s rights

movements, especially, had a profound impact at the end of the 19th century on the family

form in Canada. Wives were given the right to hold and dispose of property and the right

to make a will.

They were given the right to own businesses and make wages in their own

names.

They were given the right to apply for alimony,

and for maintenance and custody

of their legitimate children.

The legal concept of the family began to be seen not just as a

Nova Scotia (Minister of Community Services) v JGB, [2002] NSJ No 295; re: a mother’s

unwillingness to keep her house clean.

Of the Property of Married Women, RSNS 1884 (5th Ser) c 94.

Married Women’s Property Act, SNS 1893, c 11, s 1.

Court for Divorce Act, SNS 1866, c 13.

An Act Respecting the Custody of Infants, SNS 1893, c 11.

patriarchal fiefdom free from the intruding eye of the courts, but as a group of increasingly

equal individuals in the eyes of the law. And it was not just women who came to be seen as

individuals before the law. Children began to be seen as individuals with their own needs

and interests as opposed to the chattels of their fathers. Fathers were positioned as trustees

in relation to their children as opposed to property owners, and custody decisions were

made on the basis of the welfare of the child.

This traditional story of family law reform at the end of the 19th century is for the

most part, a success story for women and children. However, I will show that the

traditional view of family law reform at the end of the 19th century as one of liberalization

and formal equality between its members fails to reveal the differential impact that law

reform had on the poor. Propertied families – that is, families that could support

themselves either with real or personal property, and/or with wages – were accorded a

system of family law that families who required outside assistance were not. Propertied

families were provided access to the superior courts which, unlike the lower stipendiary

courts to which the poor were often subject, could actually protect and enforce rights to

property, divorce, alimony and custody.

Both legal scholars and sociologists have long posited the differing nature of legal

intervention into the family depending on social class. American legal historian Jacobus

tenBroek set out how families were subject to differing legal regimes according to where

one stood in relation to property and class. He called this the “dual system of family law”

– one system for the poor and one system for everyone else.

TenBroek’s work analyzed

California’s system of family law in the mid-1960s, arguing that these two systems of family

Ibid.

Jacobus tenBroek, “California’s Dual System of Family Law: Its Origin, Development, and Present

Status: Part II” (1964) 16 Stan LR 900.

law were distinct in form and content. One of his contemporaries provided the following

summary of his work:

The result of this dual system of law, according to Professor tenBroek, appears to

be a separating wall in regard to almost any matter of concern for the family --

possession of property; support relations between husband, wife, and children;

creation and dissolution of the family; custody of children; rights and duties of

parents; and so on. In regard to the poor there appears to be less emphasis on

rights, and fitness as a parent or even as a useful citizen is rarely presumed. The

burden of proof is cast on the poor person, whatever the issue may be, to make a

case in his favor. He is often subjected to official investigations, not infrequently to

humiliation and harassment. His plight is subject to exploitation for political

purposes, for instance, during elections, because of the public concern for the

spending and possible waste of tax moneys. The law of the poor appears to be

largely a creation of the legislature and, by way of implementation, of the executive.

Regulations of government agencies play an important role, as do actual practices

of welfare workers and police which are often characterized by low visibility.

The family law of the more fortunate, following Professor tenBroek's reasoning, is

largely created and administered by the courts. The law changes slowly here

because of the conservative orientation of many judges, who are vested with

substantial discretion. Marriage is viewed as similar to a partnership between

semi-independent parties, resulting in a network of legal relations often

proprietary in nature. The legislature appears to be basically uninterested. By

contrast, the law of the poor is affected by continued tampering by the legislature

and by pressure groups. It is a matter of persistent concern. Husband and wife are

viewed as an integrated entity, having pooled resources for purposes of minimizing

public aid. Fiscal considerations are dominant and frequently enforced by

conditions attached to welfare aid, designed to keep the costs of welfare programs

low. The police power of the state appears to be used to secure the comfort and the

wealth of those who are more fortunate against those who are in need and lack the

time, power, and resources to pursue their legitimate aims.

Family law for the poor was replete with fiscal and political considerations and as

tenBroek argued, was designed to keep the costs of welfare programs low.

While the

individual members of propertied families were accorded liberal rights and protections

and access to the court to enforce these rights and protections, the family in poverty in

contrast, has been “long regarded as a site of social dysfunction and source of social

Walter O Weyrauch, “Dual Systems of Family Law: A Comment” 54.2 (May 1966) Cal LR 781 at

782-83.

Ibid.

problems, has been both hyper-regulated and surveilled, and ignored and under-

supported.”

While members of propertied families were increasingly given the legal

means to self-determine, the same cannot be said of members of families in poverty. In

Nova Scotia, while legislation was passed at the end of the 19th century liberalizing the

rights of persons in propertied families, families in poverty found themselves subject to a

punitive regime of “domestic relations”

of which the first child protection act in Canada,

the Prevention and Punishment of Wrongs to Children Act,

was but one part.

But legal regulation of the family in poverty is only part of the story. The full

significance of family law reform at the end of the 19th century is only understandable when

we track how family law reform was part of an overall change in the way that liberal

societies were governed at the end of the 19th century. In his book, The Policing of Families,

Jacques Donzelot tracked how the family and family law reform played a key role in the

Shelley AM Gavigan, “Something Old, Something New? Re-Theorizing Patriarchal Relations and

Privatization from the Outskirts of Family Law” (2012) 13 Theoretical Inq L 271 at 283.

Most of these Acts appeared in a mere seven-year time period at the end of the 19th century under

Title XVII “Of Domestic Relations”, RSNS 1900, c 111 to c 126:

Of the Solemnization of Marriage;

Of the Property of Married Women;

Of Conveyances of Real Property by Married Women;

Of Dower;

Of Guardians and Wards;

Of the Prevention and Punishment of Wrongs to Children;

Of Apprenticeships;

Of the Transfer of Immigrant and Orphaned Children;

Of the Prevention of the Use of Tobacco and Opium by Minors;

Of the Maintenance and Reform of Juvenile Offenders;

Of the Custody of Infants;

Of the Adoption of Children;

Of the Licensing of Boarding houses for Infants Under Twelve Years of Age;

Of the Closing of Shops and the Hours of Labour therein for Children and Young Persons;

Of the Custody and Estates of Lunatics;

Of the Guardianship and Care of Inebriates.

SNS 1882, c 18.

rise of the “social sector” in the late eighteenth and early 19th century.

The “social sector”

arose as a field distinguishable from the economic, political, or the judicial fields, that

developed institutions and actors that would work upon certain social problems:

alcoholism, delinquency, feeblemindedness, etc.

Donzelot wrote that the development of these technologies of the social sector

changed the method of liberal government from governing the family, to governing

through the family. With the emergence of the social sector we see the conduct of

individuals governed – with the use of non-state actors such as philanthropists and

medical and legal professionals – using the ostensibly private sphere of the family.

Therefore, Donzelot argued that the family and its regulation became a solution to the

problems posed by the liberal state.

So while the Industrial Revolution at the turn of the

19th century exacerbated social inequality thereby threatening the liberal state, the family

was transformed in order to respond to these threats.

Donzelot wrote:

The placing of the family outside the sociopolitical field, and the possibility of

anchoring mechanisms of social integration in the family, are not the result of a

chance meeting between the capitalist imperative of maintaining private property

and a structure dedicated to producing subjection by means of the Oedipus

complex or what have you, but the strategic outcome of a series of interventions

that wield family authority more than they rest on it. In this sense, the modern

family is not so much an institution as a mechanism. It is through the disparity of

the familial configurations (the working-class and bourgeois bipolarity), the

variances between individual interests and family interest that this mechanism

operates.

The family was an important site for first, the philanthropic work and later, for the

social work that was so integral to preserving order in society while maintaining the liberal

Jacques Donzelot, The Policing of Families (New York: Pantheon Books, 1979).

Ibid.

Ibid at 53.

Ibid at 54.

Ibid at 83.

illusion of the public/private divide. Philanthropy and social work would work upon the

family first in the charitable, religious, moralizing discourse, and then in a normalizing,

medical-hygiene discourse, all the while maintaining the consistency of the liberal belief

in the autonomy of the family and the individual. Philanthropy and social work promised

greater autonomy, both of the family, and within the family. The social sphere responded

to the growing unrest and dysfunction confronted by the Victorian patriarchal family and

used the promise of both renewed autonomy for the family as a whole, and of greater

autonomy of women and children within the patriarchal family in particular, to maintain

social order. Autonomy for bourgeois families meant the government of protected

liberation for children, and arguably for women, as well. However, this promise of

autonomy was not provided equally for the poor.

Donzelot argued that the figure of the child and “technologies of pedagogy and child

rearing” became a central method in the rise of the social sector. However, he wrote that

the way the social sector worked upon the families of the poor and the families of the

middle and upper classes were quite different:

What of childhood? In the first instance, the solicitude of which it was the object

took the form of a protected liberation, a freeing of children from vulgar fears and

constraints. The bourgeois family drew a sanitary cordon around the child which

delimited his sphere of development: inside the perimeter the growth of his body

and mind would be encouraged by listing all the contributions of psychopedagogy

in its service, and controlled by means of a discreet observation. In the second

instance, it would be more exact to define the pedagogical model as that of

supervised freedom. The problem in regard to the working-class child was not so

much the weight of obsolescent constraints as excessive freedom –being left on the

street – and the techniques employed consisted in limiting this freedom, in

shepherding the child back to spaces where he could be more closely watched: the

school or the family dwelling.

The juvenile delinquent regime – an early child protection regime – and the

development of the juvenile court was a way for the social sector to regulate the problem

Ibid at 47.

of the juvenile delinquent and in particular the children of poor and working class

families.

The development of the child protection system at the end of the 19th century,

Donzelot argued, was a way to threaten family privacy with the loss of parental authority

for “morally deficient” families.

While the child protection system then served to

promote the notion of the autonomy of morally upright families (ie. bourgeois or white,

Christian working-class families), it did not want to become a dumping ground for

working-class families to abandon the children they could not care for. The child

protection regime became a means to judge the minor delinquent, but maintain the minor

within the home while ensuring surveillance of the family. Rather than continuing to

simply institutionalize delinquent and neglected children, protective societies emerged

that would, after the child was brought before the judicial system, take the children under

their wing and return them to their families.

The protective societies would then assist

the children to stay in the home while still extending visiting, assistance and surveillance

over the family.

The child protection system, according to Donzelot, became an important

mechanism for liberal government in governing families in poverty, connecting the family

to larger social objectives. It helped to address the social problems of the time, utilizing a

discourse of “freedom”, while at the same time responding to demands to keep poor

families from becoming too heavy a burden on the public purse. But an examination of the

techniques and practices of the child protection system reveals the differential method of

liberal government for families in poverty. It helps to reveal how the concept of the family

as a “private sphere” is constructed differently for families in poverty.

Ibid.

Ibid at 83.

Ibid at 85.

Child Protection Law and Families in Poverty

The first child protection law in Nova Scotia and indeed, in Canada as a whole, the

Prevention and Punishment of Wrongs to Children Act was passed in 1882 at the urging

of the Society for the Prevention of Cruelty to Animals in Halifax (the “Society). The Act

was written in criminal law terms, setting out investigative powers of the police, justices of

the peace and constables to investigate wrongs to children.

On finding that a person had

committed a wrong under the Act, the stipendiary magistrate was then able to make a

number of orders including imposing fines on the perpetrators of wrongs to children.

But

the magistrate could also remove children from parents if the magistrate thought it was in

the child’s welfare.

The Act was part of an overall change in the way that children were

thought of in society and the way that society thought that children should be treated. The

well-being of children was increasingly understood by law and society as deserving of

protection. Childhood was conceptualized by the Victorians as a sphere of innocence and

children were to be kept off of the streets, out of factories, saloons and places of

entertainment.

Family law reform at the end of the 19th century saw the positioning of

Section 2.

Section 3.

Section 1 provided:

No minor under the age of sixteen years shall be admitted at any time to, or permitted to

remain in, any saloon or place of entertainment where any spirituous liquors or wines or

intoxicating or malt liquors are sold, exchanged, or given away, or in any of the places of

amusement known as dance houses, billiard rooms, cippi rooms, dancing classes, clubs or

concert saloons, unless accompanied by his or her parent or guardian; nor into any bawdy

house or house of ill-fame under any circumstances whatsoever. …

Neil Sutherland, Children in English-Canadian Society: Framing the Twentieth Century

Consensus (Ontario: Wilfred Laurier University Press, 2000).

parents in poor families as well as in propertied families, as trustees in respect of their

children as opposed to mere property owners.

But there was one class of child that was at the center of concern in the development

and enforcement of the Prevention and Punishment of Wrongs to Children Act: the child

in poverty.

The wrongs that characterized cruelty to children were not just physical

harms, but the way these harms were articulated in the Act captured anxieties about the

activity of the poor. Philanthropists and criminal law personnel were most influential in

setting out the wrongs that would justify an intervention into the private sphere of the

family and the removal of the child from the custody of the parent. Their legacy is

noticeable in the way the wrongs were articulated in the Act:

Whenever the parent or other person having the care and custody of a child [under

the age of sixteen years], is convicted before any court or magistrate with having

assaulted, beaten, ill-used, abandoned or treated said child with habitual cruelty

and neglect, or said child is suffered to grow up without salutary parental control,

or in circumstances exposing him or her to lead an idle or dissolute life and the

court or magistrate before whom such suspicion is had, deems it desirable for the

welfare of the child.

The Act was written in criminal law language, thereby criminalizing activity which

had been regulated by the common law as private activity under the purview of the father:

the care and upbringing of children.

Furthermore, the Act connected the care of the child

to wider poor law and philanthropic reforms of the time. If the judge determined that it

was in the welfare of the child, he could either institutionalize the child in an orphan

asylum or charitable or other institution, “or make such other disposition thereof as now

is or hereafter may be provided by law in cases of vagrant, truant, disorderly, pauper or

See, for example, Joy Parr, Labouring Children: British Immigrant Apprentices to Canada,

1869-1924 (Toronto: University of Toronto Press, 1994).

Section 3.

Sir William Blackstone, Commentaries on the Laws of England, Book 1, chapter 16.

destitute children.”

The Act also applied to third parties. Minors under the age of 16 were

not to be admitted to any “saloon or place of entertainment where any spirituous liquors

or wines or intoxicating or malt liquors are sold” or “any of the places of amusement known

as dance houses, clubs, or concert saloons” nor into “any bawdy house of ill fame”.

proprietor, keeper or manager who was found guilty of admitting a minor or allowed a

minor to remain on the premises could be found guilty of an offence and liable to pay a

fine, failing which, the offender would be committed to a common gaol.

As I discuss in the next chapter, the Act and the philanthropists at the Society who

enforced the Act no doubt did much to improve the condition of some children in poverty

in Halifax at the end of the 19th century. But their work was addressing two problems

simultaneously: the problem of protecting the child from certain harms and the problem

of intervening in families in poverty. The result of the activity of child protection, or child

saving as it was known,

was therefore not simply to prevent and punish wrongs to

children, but to simultaneously set out the boundaries of the private sphere of the family

in poverty and the means by which these boundaries could be traversed. As child

protection expert Robert Mnookin has said, “Defining the proper scope for ‘child

protection’ poses fundamental questions concerning political and moral philosophy about

the proper allocation of power and responsibility between the family and the state.”

Ibid.

Section 1.

Sections 5 and 6.

Anthony M Platt, The Child Savers: The Invention of Delinquency (Chicago: University of

Chicago Press, 1977).

Robert Mnookin, “Child Custody Revisited” (2014) 77 Law and Cont Prob 249 at 253.

The proper scope for child protection, however, has not remained static. Since the

introduction of the first child protection act in Nova Scotia we have seen the figure of the

child to be protected by the system shift over time. In the very early years of the Society,

the work of protecting children was focused on parents and criminalizing wrongs to the

child. Neglect by drunken fathers, and idle and dissolute mothers was the focus of much

activity of child saving at this time.

However, the focus of child protection work soon

shifted in the early 20th century with the development of the juvenile delinquent system.

By the late-1910s, 1920s in Nova Scotia, the child at the center of protection work was the

juvenile delinquent; constructed variously as an innocent and a potential social pariah.

In this era, the “truant” became a focus of the child protection work in Nova Scotia, and

Halifax in particular.

While truancy was the most commonly cited harm, or offence, committed by the

juvenile delinquent for which state intervention was justified in the juvenile delinquent

era, in reality there was little need to “charge” the child or the family with having

committed a wrong at all. In Chapter 3 I will show that in the era of the juvenile delinquent

regime, the harm committed was of less importance than the best interests of the child.

Once a child came to the attention of the juvenile delinquent regime, there was little due

process of law required in order to find the child situated in a reformatory or

See, for example, Re Mahoney, (1892) 24 NSR 86.

Platt, supra note 32.

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Sixth Annual Report” in Journals of the House of Assembly, Appendix No 28 (1919) at

11. In 1919, for example, the following breakdown was presented for offences by juvenile delinquents

and neglected children: Truancy (76); Theft (44); Breaking and Entering and theft (22); Damaging

property (32); Violation of civic ordinances (11); contributing to delinquency (32); contributing to

neglect (2); assault (9); vagrancy (5); violation of the Temperance Act (4); manslaughter (1).

Truancy, therefore, comprised 37% of all cases of delinquency involving children. There were 225

boys before the court that year and 13 girls. The bulk of the boys were between the ages of 11-14 (ie.,

125).

denominational institution. In this era there was little concern for the family, or individual,

privacy of the poor. Instead, the professional psychiatrists and denominational personnel

that populated the institutions to which juvenile delinquents were sent were highly

influential in setting out the content of the best interests of the child. In this era of

socializing justice, medical and psychiatric expertise were prized over legal expertise. As a

result, the liberty interests of children and their families swiftly gave way to religious and

medicalized interventions conducted in the name of the welfare of the child. Children of

socio-economically marginalized families were institutionalized in this era with little due

process, in order to reform them into upstanding and productive citizens modelled on a

white, middle class, able-bodied ideal of the child.

Yet again, however, the figure of the child as delinquent at the center of child

protection work shifted in the years after World War II. In these post-war years there was

a focus not on the child as innocent or blameworthy, but on the child as a developing

personality. The child was not born innocent or sinful, but rather was a product of their

environment and in particular the psychological bonds and influences of familial

relationships. Child protection work therefore shifted its focus in the post-war years onto

the source of these bonds and influences: the family and in particular, the mother.

In the war and post-war years much child welfare work was focused on working

not only to protect children from physical harm and neglect, but on working with the

unwed mother. While child development knowledge in the post-war years was espousing

the value of maternal attachment, attachment to the unwed mother was not considered to

be in the best interests of the child. The unwed mother was constructed by child

development knowledge as “delinquent” and “neurotic” and incapable of providing for the

See, for example, John Bowlby, Maternal Care and Mental Health (Geneva: World Health

Organization, 1952).

proper psychological development of the child.

In Chapter 4 I will show how, in the post-

war years until the 1960s in Nova Scotia, unwed mothers were actively encouraged by child

protection authorities to give up their children as a result.

Therefore, through history we can see that the harms and determinations of best

interests that have served to justify outside intervention into the private sphere of the

family have not been predicated solely upon safeguarding the physical well-being of

children. Throughout the history of child protection law, various agents external to the

family – whether criminal law, philanthropic, religious, medical or psychiatric – have had

a hand in determining the content of the legal concept of harm to children and therefore,

justifying legal interventions into the private sphere of the family. In the process of

determining what constitutes harm to children and their best interests, these agents have

informed constructions about what types of mothers and children are targeted by child

protection interventions and why.

In this thesis I will critically examine the shifts in focus of child protection law,

from the era of cruelty to children, to the establishment of the juvenile delinquent regime,

to the focus on unwed mothers in the post-war years, in order to understand how the family

in poverty has been regulated by child protection law in a liberal society. In undertaking a

critical historical analysis of child protection law, I begin from an understanding of law

that is distinct from a “liberal legalist” approach. Liberal rule of law thinking exhorts us to

believe that law’s categories are politically neutral: applying equally to all. Rather than

seeing law as a neutral arbiter of disputes, as depicted by a liberal understanding of law, I

Ibid at 94-95.

Karen Swift, Manufacturing “Bad Mothers” A Critical Perspective on Child Neglect (Toronto:

University of Toronto Press, 1995); Marlee Kline, “Complicating the Ideology of Motherhood: Child

Welfare Law and First Nation Women” in Martha Albertson Fineman and Isabel Karpin, eds,

Mothers in Law: Feminist Theory and the Legal Regulation of Motherhood (New York: Columbia

University Press, 1995).

understand law as a constitutive part of social life, capable not just of ordering our

relationships – with each other or with the state – but of actively shaping individuals,

relationships, and society in particular ways.

Furthermore, in mediating relationships –

between the market, family, state, and individuals – the law is actively structuring

relationships in ways that may perpetuate or challenge overarching processes of power.

In undertaking a critical historical analysis of child protection law I will examine how law

has played a part in constructing mothers and children in poverty in ways that either

reinforcing or challenging overarching relations of power affecting marginalized families.

For example, as I discuss in the next chapter, with the passing of child protection

legislation in the late 19th century the conduct within the poor family received a new level

of scrutiny. While the Poor Law provided that a father on poor relief lost the ability to

direct the care and custody of his child, child protection legislation added a new

contingency on which the family autonomy of the poor was based. The Act provided that a

father’s right to custody and care of his child was contingent not just on his ability to

financially support his child, or protect the child from physical harm, but he had to ensure

that is his care of the child was not “exposing the child to a dissolute lifestyle”.

Industrialization, “intemperance”, outmigration and desertion, however, meant that by

the end of the 19th century many families in poverty would have, functionally or otherwise,

been mother-headed families. The Act, then, served to legislate the content of the tenuous

de facto right of mother-headed households at the end of the century to the care and

Wendy Brown and Janet Halley, “Introduction” in Brown and Halley eds, Left Legalism/Left

Critique (Durham: Duke University Press, 2002).

Susan B Boyd, Dorothy E Chunn, Fiona Kelly, and Wanda Wiegers, Autonomous Motherhood? A

Socio-legal Study of Choice and Constraint (Toronto: University of Toronto Press, 2015); Shelley

AM Gavigan and Dorothy E Chunn, “Introduction” in Gavigan and Chunn eds, The Legal Tender of

Gender: Law, Welfare and the Regulation of Women’s Poverty (Oxford: Hart Publishing, 2010);

Dorothy Roberts, Killing the Black Body (New York: Pantheon Books, 2007); Brenda Cossman and

Judy Fudge, “Introduction” in Cossman and Fudge eds, Privatization, Law and the Challenge to

Feminism (Toronto: University of Toronto Press, 2002).

custody of their children. Single, or functionally single mothers would be accorded a sphere

of “autonomy” if they conducted themselves and their children accordingly. For mothers

that were found to be “idle or dissolute” that is, mothers who, without social assistance as

we know it today, turned to prostitution to protect and provide for their children, they

would find themselves confronted with absolute coercion – legally-sanctioned, yet

virtually unchecked power to remove the child from her care, possibly never to see the

child again.

But the “idle and dissolute” mother was not just the mother that would be

confronted by both the Society and the criminal law regime in its most punitive guise, she

was also the “pauper” mother who was unworthy of either municipal or philanthropic

support. In this thesis I will investigate how the moral regulation of families in poverty,

and especially mother-headed families, as “undeserving” or “unworthy” of public support,

has likewise served to inform the construction of harm and best interests in child

protection law and jurisprudence. Furthermore, I will show how, throughout the history

of child protection law in Nova Scotia, the families singled out as undeserving, idle, and

dependent in welfare discourse were often the families determined as “feeble-minded”,

“neurotic”, and “high-risk” in the child protection system. In particular, I am interested in

how these shifting evaluations of deservedness, harm and best interests by welfare

professionals have served to shape ideas about family autonomy for families in poverty as

well as the scope of public responsibility for these families. I will investigate what role

judicial decision making has played in adjudicating upon the harms and best interests of

children, in either challenging or reproducing these social norms.

With the passing of the first child protection act the Nova Scotia legislature not only

set out the harms to children that would justify an intrusive intervention into the family,

but it affirmed the presumption of family autonomy in a liberal society. Jurisprudence

adjudicating upon these harms and best interests has drawn upon and either challenged

and reinforced prevailing social norms about the family, in the process setting out the

content of family autonomy for families in poverty. But in setting out the public/private

divide for families in poverty, child protection law and jurisprudence also set out where

private responsibility ends and public responsibility for the child and the family begins. In

this thesis I will examine how harms to children that are defined at law and adjudicated

upon either challenge or reinforce prevailing ideas about the proper scope of public

support for families in poverty.

I take a critical feminist approach to analysing the divide; one that sees that

public/private divide has been used to obscure the operations of power, by constructing

the private space of the family as a natural sphere free of regulation.

As feminist theorists

have shown, the private sphere of the family has always been shot through with social and

legal regulation, promoting or challenging patriarchal and sexualized relations of power.

It is often the position of the mother as the primary caregiver of children and the primary

caretaker in the private sphere, which has served as a counterpoint to outside intervention;

simultaneously justifying the absence and necessity of intervention inside the private

sphere of the family. Throughout the history of child protection law it is often the figure of

the mother which has characterized the need outside intervention into the family; if she is

“intemperate”, “idle”, “unfit”, or “high risk”. On the other hand, when the public sphere

pulls back responsibility to support families in poverty, it is the mother in poverty, and her

work in the private sphere which compensates.

In investigating how the child protection

Susan B Boyd, Challenging the Public/Private Divide: Feminism, Law and Public Policy

(Toronto: University of Toronto Press, 1997) at 9-10.

See for example, Frances E Olsen, “The Family and the Market: A Study of Ideology and Legal

Reform” 96 (1983) Harv LR 1497; Linda Gordon, “Family Violence, Feminism, and Social Control”

(1986) 12 Fem Stud 452 at 458-459; Catharine A MacKinnon, Toward A Feminist Theory of the

State (Cambridge: Harvard University Press, 1989).

Cossman and Fudge, supra note 41 at 27-28.

law and jurisprudence has informed the public/private divide for families in poverty, then,

I will detail how this divide has either reinforced or challenged patriarchal relations and

the consequences this has had for women and children in poverty.

In the early era of cruelty to children and the introduction of the Prevention and

Punishment of Wrongs to Children Act, the terms of the public/private divide were being

redrawn. The private sphere of the nuclear family was re-ordered by law and society to

take greater responsibility for the needs of its members. A growing fear of “pauperism” and

“dependency” saw a greater interest in distinguishing between the “deserving” and

“undeserving” poor. Assistance to the undeserving able-bodied poor was provided

sparingly, grudgingly and on a crisis basis, only, in the understanding that work, not poor

relief was the proper way to provide for the poor. Work, however, did not include the

reproductive labour of women and mothers in the household. Over the past several

decades, social policy scholars have noted how we are seeing a re-emergence of expanded

definitions of “undeserving poor” in the provision of social services, including a shift back

to a more restrictive, residual era of child protection services.

Much like the era in which the Prevention and Punishment of Wrongs to Children

Act was introduced and enforced, it is not the public sphere, but the family and the

marketplace where the poor are meant to seek support. Only certain members of the family

See for example, Hester Lessard, “Empire of the Lone Mother: Parental Rights, Child Welfare

Law, and State Restructuring” 39 Osgoode Hall LJ 717 at 725. A definition of residual services is

provided in Charles Zastrow, Introduction to Social Work and Social Welfare: Empowering

People, 10th ed (California: Brooks/Cole, Cengage Learning, 2010) at 6:

[S]ocial welfare services should be provided only when an individual’s needs are not

properly met through other societal institutions, primarily the family and the market

economy. According to the residual view, social services and financial aid should not be

provided until all other measures or efforts have been exhausted, including the individual’s

and his or her family’s resources. In addition, this view asserts that funds and services

should be provided on a short-term basis (primarily during emergencies) and should be

withdrawn when an individual or the family again becomes capable of being self-sufficient.

are understood as deserving of support. Feminist scholars of the welfare state argue that

with increasing privatization we are seeing poor women, and in most cases, poor single

mothers becoming a particular focus of social policy. As Judy Fudge and Brenda Cossman

explain, “Privatization has come to represent a fundamental shift not only in government

policy but also in the balance of public and private power.”

As the state withdraws

support from the public sphere, these authors argue, so women are left to shoulder a

disproportionate share of the work of social reproduction.

Social reproduction and

dependency are increasingly seen as private matters, obfuscating the value of women’s

work within the home.

This privatization of responsibility not only serves to relieve the

state of responsibility but it serves to naturalize a particular gender order.

The consequences of this new gender order are particularly problematic for socio-

economically marginalized women, that is, women who are subordinated at the

intersections of patriarchy, racism, classism and ableism. In particular, feminist theorists

have noted how, in a neoliberal era, women who are deemed unworthy of public support

are likewise constructed as threats to society for whom even the most coercive

interventions are justified.

Welfare theorists have shown how neoliberal restructuring

has resulted in women on assistance being subjected to more punitive systems of discipline

Cossman and Fudge, supra note 41 at 4.

Ibid.

See for example, Martha Fineman, “Cracking the Foundational Myths: Independence, Autonomy,

and Self-Sufficiency” (1999) 8.1 Am Uni J of Gender, Soc Pol and L 13 at 14.

Cossman and Fudge, supra note 41 at 10.

Anna Marie Smith, Welfare Reform and Sexual Regulation (New York: Cambridge University

Press, 2007).

and surveillance.

For example, in their work on the experiences of abused women on

assistance, Janet Mosher et al, have detailed how women on assistance today are made

more vulnerable to abuse:

The findings from our research project make clear that women who flee abusive

relationships and turn to welfare seeking refuge and support frequently find

neither. Women's experiences of welfare are often profoundly negative. Women

struggle to survive with their children on little income, often going without

adequate food, shelter and clothing. They encounter a system that is less than

forthcoming about their entitlements, and about the multiple rules with which they

must comply. Their hopes of training and employment through workfare

participation are almost invariably dashed. They are often subjected to demeaning

and humiliating treatment from workers within a system in which suspicion and

the devaluation of recipients are structured into its very core. For many the

experience of welfare is like another abusive relationship. And virtually every

woman with whom we spoke was caught in one or more double binds as she

struggled to be a good mother, good worker and good citizen. Disturbingly, the

decision to return to an abusive relationship is often the 'best' decision for a

woman, in a social context of horrendously constrained options.

In an era where social policy is focused on privatization, it is a matter of social

justice to subject law’s ostensibly neutral categories to critical examination in order to

understand the ways in which they further socio-economic marginalization. Placing law’s

neutral categories in historical perspective helps to illuminate their contingent character.

In this project I hope to contribute to an understanding of the way that child

protection law is involved in this “re-regulation” in an era of advanced liberalism and

privatization. In particular, I hope to understand how this re-regulation has resulted in a

coercive rather than a supportive engagement with families in poverty. A trend towards a

more coercive intervention into the lives of families has been noted in Nova Scotia in the

Dorothy Chunn and Shelley AM Gavigan, “Welfare Law, Welfare Fraud, and the Moral Regulation

of the ‘Never Deserving’ Poor” (2004) 13 Soc & Leg Stud 219; Dorothy Roberts, “Child Protection

as Surveillance of African American Families” (2014) 36 J of Social Welfare Family Law 426.

Janet Mosher, et al, Walking on Eggshells: Abused Women’s Experiences of Ontario’s Welfare

System, Final Report from the Woman and Abuse Welfare Research Project (5 April 2004) at v,

online: York University

<http://www.yorku.ca/yorkweb/special/Welfare_Report_walking_on_eggshells_final_report.pd

f>.

most recent report of Nova Scotia’s Minister’s Advisory Committee on the Children and

Family Services Act and Adoption Information Act (May 2008). The 2008 report

contained the rather disturbing observation that:

Reports from social workers and professionals of support services echo the

statement by J. Lafrance that “The overall paradigm in child protection agencies

seems to be moving toward increasing power and control over clients and away

from interpersonal elements necessary for the achievement of child welfare

activities which are central to agency goals.”

Without understanding the ways in which the ostensibly neutral categories of child

protection law can end up reinforcing a coercive regulation of families in poverty, we will

be perpetuating harm against women and children in poverty and reinforcing a residual

model of social service provision. Furthermore, failing to understand how the neutral

categories of child protection law assist in constructing a particular vision of family

autonomy for families in poverty, risks reinforcing larger processes of social and economic

inequality.

A Critical Historical Analysis of Child Protection Law in Nova Scotia

Nova Scotia is a particularly fruitful place to study the history of child protection

law. First, Nova Scotia, along with New Brunswick, were the only provinces to inherit the

Elizabethan Poor Law

in much the same form as it existed in England. A critical history

of social welfare and child protection in Nova Scotia reveals both the disjunctures and

continuities between the antiquated ideas of the Poor Law and the ostensibly “modern”

social assistance laws. Perhaps because of its Poor Law inheritance from Britain and

perhaps because of its close connections to the Commonwealth of Massachusetts, Nova

Nova Scotia, Minister’s Advisory Committee on Children and Family Services Act and Adoption

Information Act, Report (Halifax: Nova Scotia Community Services, May 2008) at 47.

SNS 1758, Title 72, no 12.

Scotia has always been somewhat unique in Canada in the way that it has approached

poverty and related social problems. Joseph Howe’s impassioned speech which promoted

so much social and political change in the province was a soliloquy against the “Mansions

of Woe”; the workhouse erected as part of the Poor Law.

From the mid- to –late 19th century Halifax became a city of social reformers. The

religious institutions that are thought to be the cause of much conservative thinking in the

province, in fact generated a great deal of social reform in the late 19th century. Women in

particular became active members of the temperance movement and pushed for, what

were at the time considered progressive social reforms. The development of the Society for

the Prevention of Cruelty and the passing of the Prevention and Punishment of Wrongs to

Children Act are but several examples.

Nova Scotia was the first province to have a Society for the Prevention of Cruelty

and the first province to have child protection legislation in the sense that we know it

today: setting out the grounds of harm that justify state removal of children from parental

care and custody and provision for judges to make child placement decisions on the basis

of the welfare of the child. In the “domestic relations” arena, Nova Scotia is a province of

firsts. Nova Scotia was one of the first jurisdictions in Canada to grant judicial divorces

and alimony. And Nova Scotia was also one of the first provinces in Canada to have a

juvenile court. Close British and American connections were no doubt responsible for

Nova Scotia being the place of so many firsts in the welfare and child protection fields;

Per Joseph Howe in Joseph A Chisholm, ed, The Speeches and Public Letters of Joseph Howe, 2

vols (Halifax: Chronicle Publishing Co, 1909) at 67. The following is the relevant excerpt from

Howe’s famous libel trial speech referring to the Halifax poor house:

From six in a bed in those mansions of woe,

Where nothing but beards, nails and vermin do grow,

And from picking of oakum cellars below,

Good Lord, deliver us!

however, these firsts were also a matter of necessity. Nova Scotia experienced an era of

economic boom and bust in the mid-to-late 19th century which resulted in an economic

depression at a time when many provinces in the new Canada were experiencing relative

economic prosperity. The “age of wood, wind and sail” gave way to the age of industrial

capitalism which only some parts of Nova Scotia were able to take advantage of.

The

resulting economic depression and out-migration created a society in dire need of social

reform and early family law as well as the child protection reforms provided one way to

address the growing social problems within the province, but within the city of Halifax, in

particular.

Because much of the philanthropic activity that resulted in the development of the

child protection and then juvenile delinquent systems happened in Halifax in the late-19th-

early 20th centuries, the early chapters of this thesis focus on Halifax and not the rest of

Nova Scotia. The application of the Poor Law differed as between Halifax and the counties.

In the counties, the Poor Law provided that the poor could be provided for by “outdoor

relief” whereas in Halifax the poor could only be provided for by “indoor” relief. This

means that in Halifax, poor relief was provided by the Poor Law only if recipients agreed

to enter and reside in the Poor House.

Halifax at the end of the 19th century was a city of social reformers, but it was also

a city of asylums. These asylums eventually became specialized and had a great effect on

the way that work with the poor was carried out. No longer would whole families be placed

in the Poor House, but the “deserving poor” that is, children and the non-able-bodied

“infirm”, would be placed in specialized, modern asylums for the time. This reform had a

great effect on the way that social welfare would be carried out in this province. The great

Alan Brookes, “Out-Migration from the Maritime Provinces, 1860-1900” (1976) 5.2 Acadiensis

26 at 28.

concentration of both state and non-state agents of social reform in the city of Halifax,

furthermore, means that the greater body of historical documentation comes from agents

in the city. The Society for the Prevention of Cruelty was situated in Halifax, as was the

juvenile court and the Superintendent of Neglected and Delinquent Children, and as such,

much of the historical record comes from agents and organizations in Halifax and not the

counties.

While I use many primary legal sources, including reports of juvenile court judges

and Commission Reports, I rely primarily upon legislation and case law to understand how

transitions in the various stages of child protection work were effected by law.

But these

historical materials are not sufficient to give us the whole picture, not only of how child

protection law operated, but of how social policy, philanthropy and psychiatry influenced

the form and content of child protection law. When it comes to the history of social welfare

policy and the history of child protection practice as well as the practice of other human

service professionals, I have relied upon secondary sources compiled by historians of those

fields as well as secondary sources from legal historians. While this thesis necessarily looks

to social welfare history and the history of the work of both philanthropic volunteers and

human service professionals, as indicated upon, this history is presented only to gain

insight into possible larger social and political questions to which child protection law and

jurisprudence may be responding. Rather, this is a critical feminist thesis, which situates

A note about historical sources is pertinent here. As there are few reported child protection

decisions from this time I have focused analysis on the statutes themselves – both child protection

statutes and married women’s property statutes – in order to show how law was involved in

transforming the family and transforming intervention in the family. Furthermore, because child

protection work was solely undertaken by the Society for the Prevention of Cruelty I have consulted

the notebooks of the Society in order to understand how the agents active in child protection work

at the time saw their work.

child protection law in historical perspective.

It is first and foremost a thesis about the

emergence and development of a particular form of legal regulation.

The first chapter of the thesis (Chapter 2) will begin by examining the social and

legal context in which the first Society for the Prevention of Cruelty and the first child

protection legislation in Canada, emerged. I will situate the emergence of the Society and

the Prevention and Punishment of Wrongs to Children Act within family law and social

welfare reform in the province. I will examine how family law reform marked a

fundamental change in the family regulated by the common law and how it paved the way

for legislated intervention into the family. This period is important not just because it

marks the beginning of the development of child protection law in its modern form, but it

also marks a period of significant change in the family, the economy, in society and in

politics in Nova Scotia. The development of married women’s property statutes and child

protection legislation, I argue, mark a sign of significant transition of the Victorian family

and the emergence of social legislation to respond to this transition. I will show that child

protection law emerged as a result of the work of the Society for the Prevention of Cruelty

and was influenced by the particular socio-economic and political needs of the day. I have

therefore used secondary sources in order to get a full picture of what social, economic and

political forces were at play at this time, and how they worked to influence the development

of child protection law.

After examining the emergence of child protection law in the province, the

successive chapters will track moments of transition in the development of this law; that

is, moments where we see the goals and techniques of the child protection law and

jurisprudence begin to change. The first major moment of transition of child protection

In this regard I have been influenced by the critical historical wok of scholars such as Janet Halley,

“What is Family Law: A Genealogy, Part I” (2011) 23 Yale JL & Hum 1; Joan Sangster, Regulating

Girls and Women: Sexuality, Family, and the Law in Ontario, 1920-1960 (Toronto: Oxford

University Press, 2001); Dorothy Chunn, From Punishment to Doing Good: Family Courts and

Socialized Justice in Ontario, 1880-1940 (Toronto: University of Toronto Press, 1992).

law after its emergence, came some two decades after the passing of the Prevention and

Punishment of Wrongs to Children Act, with the development of the juvenile court and the

focus on the delinquent child. In Chapter 3 I look at both the juvenile delinquency and

child protection legislation that was introduced in the first decades of the 20th century,

however, as decisions of the juvenile court were not recorded I have had to rely upon

annual reports of the juvenile court judge and the Superintendent of Neglected and

Delinquent Children. These annual reports – attached as appendices to the Journals of the

Legislative Assembly – provide a wealth of insight into what child protection and juvenile

delinquency reformers of the day understood as their role. We see in the reports of the

juvenile court judge a great deal of emphasis first on religious upbringing, and then on

insights coming from psychiatric and medical discourses beginning to influence child

protection law.

In Chapter 3, I look at how child protection law transitioned from an emphasis on

cruelty to children, and the use of the criminal and philanthropic experts to address the

problem to a system premised on a “socialized justice” approach to regulating deviancy

and delinquency. Towards the end of Chapter 3, however, I have used recorded decisions

of appeals from juvenile court decisions to note that there was some challenge to the

socialized justice of the juvenile courts. Although I looked for any recorded decision

decided under the child protection legislation between 1882 and 1950, only a handful could

be found in the law reports and these are all summarized and analyzed in Chapter 3. The

dearth of cases reveals that there was not a great deal of appellate activity in terms of

appealing juvenile court decisions until we see the recorded decisions emerging from the

family courts in the 1970s in Nova Scotia. This is not surprising, given the lack of access to

justice that would have been experienced by families living in poverty at the end of the 19th

century to the middle of the 20th.

The second period of transition within child protection law and practice occurred

in the post-war period. However, because this transition is not immediately recognizable

in Nova Scotian jurisprudence until the 1970s, I examine the transition to a jurisprudence

of “natural parental rights” issuing from the Supreme Court of Canada in the 1950s.

Beginning in the 1950s, the Supreme Court of Canada began to hear a number of cases

involving either single mothers or two-parent families wishing to revoke their previously-

given consent to adoption. These cases at the Supreme Court eventually became known as

the trilogy of “natural parental rights” cases

and they had an important effect on the way

that judges intervened in marginalized families to relieve them of parental authority over

their children.

A decade after the release of these cases, child protection jurisprudence began to

proliferate in Nova Scotia. Not just because the Supreme Court jurisprudence opened up

ways to challenge the legislation, but because of the development of family courts and the

more frequent provision of written decisions. These written decisions – both trial and

appellate level – that began to emerge from the 1970s on, form the bulk of the material I

will be analysing from the end of Chapter 4 going forward. I have focused in on reported

child protection cases where it is evident that judges are grappling with the legal

significance of the Supreme Court of Canada trilogy. Between the early 60s to the mid-

1970s there are few recorded child welfare cases in Nova Scotia and as such I have

summarized the bulk of those cases in Chapter 4. Chapter 4 ends, however, by

exemplifying how, despite the progressive potential of natural parental rights, the legal

concept was still capable of accommodating a repressive regulation of marginalized

Martin v Duffell, [1950] SCR 737, 4 DLR 1; Hepton v Maat, [1957] SCR 606; and Agar v McNeilly,

[1958] SCR 52.

mothers. As such, the Chapter ends with an analysis of a number of cases in which we can

see the malleability of the concept of “fitness” in particular.

In Chapter 5 I will argue that the introduction of the Children and Family Services

Act in 1991 marked a more objective and rights-based act than the child protection acts

that had been introduced before it. Because my concern in chapter 5 is to capture how it is

that a transition to a rights-based “least intrusive intervention” model of child protection

law introduced by the Children and Family Services Act transformed the problems posed

for child protection law, I will be focusing my research mostly on trial level decisions

decided under the Children and Family Services Act. The benefit of focusing on trial level

decisions is that, in dealing with facts as well as law, they give us an important insight into

what types of families are involved in child protection law, what harms and risks of harm

form the grounds of intervention into the family. Trial level decisions also provide insight

into the content of what judges understand as the best interests of the children involved.

In these trial level decisions I will be searching for specific changes in the way trial judges

interpret notions of family autonomy, harm, risk, and best interests – the central

organizing concepts of child protection law – in order to understand how these concepts

have either served to reinforce or challenge the processes of privatization that have proven

so hostile to the needs of the poor, and of mothers in poverty, in particular.

A Feminist Understanding of the Social Regulation of Families in Poverty

The legal regulation of the family in poverty is incomprehensible without also

understanding how welfare policy has come to affect the lives of these families. In Chapter

4 I will detail how social assistance emerged in this province at the behest of child

protection authorities attempting to keep families in poverty together and ensure that

children were being raised not in institutions, but in the homes of “fit” and proper mothers.

Furthermore, the lives of families in poverty are deeply affected by welfare policy, both

financially and in terms of how they are, as the recipients of assistance, constructed in

society at large. Welfare eligibility has since the Poor Law been premised on notions of

whether one is “deserving” or “undeserving” of public support. The emergence of the

Prevention and Punishment of Wrongs to Children Act occurred at a time when the

Victorians were particularly focused on the child as innocent and deserving of public

support. This construction of the child, I will show, had important effects on how public

assistance was administered in the province at that time.

As tenBroek pointed out in his study on the dual systems of family law, family laws

for the poor were often tied to welfare and were designed with fiscal concerns in mind.

Illegitimate children’s acts, for example, not only set out who was considered “illegitimate”

but they also set out who had responsibility for the maintenance of these children.

The

history of modern welfare reform in Nova Scotia has been premised upon determining

eligibility for certain types of families. In Chapter 4 I will show how the introduction of a

provincial system of welfare in Nova Scotia by way of the Mothers’ Allowance is a prime

example.

The introduction of Mothers’ Allowances in the 1930s was administered wholly

upon the type of family at issue and in particular, as the name suggests, wholly focused on

the mother and her marital status. The early decades of Mothers’ Allowances in Nova

Scotia saw only widows, and the wives of disabled men eligible for the allowances; unwed

mother-headed families were not seen as the family forms that the province wanted to

legitimate by providing assistance. The provision of assistance to widowed families and to

the families of disabled men had an effect on the position of these families within the child

protection system. With the provision of material assistance to these families they would

tenBroek, supra note 7 at 980.

Maintenance of Bastards Act, SNS 1851, c 91.

not have to rely on the child caring institutions in the city or on the assistance of

philanthropic societies such as the Society for the Prevention of Cruelty or the Children’s

Aid Society in order to care for their children. By supporting these families in poverty with

publicly-provided assistance, the province began to develop a preventative, welfarist

system of child welfare that was more supportive of eligible families, rather than acting

merely as a residual system to take in children in moments of crisis. This welfarist,

preventive system, however, was not available to all families equally as long as Mothers’

Allowance was provided only to certain types of mother-headed families.

Contrary to tenBroek’s thesis, then, feminist welfare historians have argued that

this focus on women, and especially single mothers on assistance, has not been the result

purely of a desire to minimize the costs of welfare in the name of bourgeois interests.

Instead, they argued that welfare policy has at times utilized the private space of the family

to promote overarching systems of power and domination, and at times to challenge it. As

Shelley Gavigan and Dorothy Chunn explain:

[F]eminists in different jurisdictions have demonstrated that, in many ways, the

history of all welfare states is inextricably bound up with the history of women and

women’s struggles within and against the state. In particular, feminist socio-legal

scholars problematize women as agents of change and emphasize the complex and

contradictory contributions of law, state and welfare policy to the social and legal

position of women.

As many welfare scholars have shown, the history of welfare reform has been the history

of the instituting and challenging of the intersecting systems of patriarchal, racial,

sexualized and ableist oppression.

Gavigan and Chunn, “Introduction”, supra note 41 at 2-3.

See, for example, Linda Gordon, Pitied But Not Entitled: Single Mothers and the History of

Welfare, 1890-1935 (Cambridge: Harvard University Press, 1994); Margaret Jane Hillyard Little,

‘No Car, No Radio, No Liquor Permit’: The Moral Regulation of Single Mothers in Ontario, 1920-

1997 (Oxford: Oxford University Press, 1998); Janet Guildford, “The End of the Poor Law: Public

Welfare Reform in Nova Scotia before the Canada Assistance Plan” in Judith Fingard and Janet

Guildford eds, Mothers of the Municipality: Women, Work and Social Policy in Post-1945 Halifax

(Toronto: University of Toronto Press, 2005).

Sociologists have developed a number of concepts with which to understand the

way in which state and state policies govern individuals in poverty in a liberal capitalist

society. Sociological theorists in the late 19th century developed the concept of “social

control” in order to understand the maintenance of social order, whether by coercive

means such as through law, or by less explicitly coercive processes such as the organization

of work or education.

Social control theory in the 1960s and 70s focused on how state

agents, in the course of controlling deviance, in fact reproduced deviance through the

process of labelling.

And eventually, social control theory became a means with which

Marxist theorists analysed the ways in which the ruling classes exerted control over the

working class.

However, social control theory and its emphasis on the repressive nature

of the state, was unable to account for the agency of individuals and groups in challenging

or acquiescing to state control.

In other words, as the quote from Chunn and Gavigan

sets out above, social control theory was unable to problematize individuals as agents of

social change.

Furthermore, theorists have shown that social control critiques are unable to

account for the ways that families have been dealt with by child protection authorities in

particular. As Linda Gordon has pointed out in her study of the Massachusetts Society for

the Prevention of Cruelty to Children from 1870-1920, the history of the regulation of child

abuse requires a more nuanced understanding of the agency of mothers, especially.

The

Dorothy E Chunn & Shelley AM Gavigan, “Social Control: Analytical Tool or Analytical

Quagmire?” (1988) 12 Contemporary Crises 107 at 108.

Ibid.

Ibid at 109.

Ibid at 118.

Linda Gordon, “Single Mothers and Child Neglect 1880-1920” (1985) 37 Am Quart 173; Gordon,

“Family Violence, Feminism, and Social Control”, supra note 43 at 458-459.

Massachusetts Society for the Prevention of Cruelty to Children, much like Nova Scotia’s

Society for the Prevention of Cruelty, was a group of early philanthropists who carried out

early child protection work before the establishment of Children’s Aid Societies. Gordon

argues that when studying how these philanthropic societies engaged with families in

poverty to address cruelty to children, “None of the social control critiques can adequately

conceptualize the complex struggles” of the families with which these early child savers

were involved.

Social control assumes that outside forces act repressively upon the

private sphere of the family. However, Gordon argues that in many instances, women in

poverty called upon the philanthropists involved with the Society and invited them into

the home.

Instead of seeing the women that called upon the Society for assistance as victims,

Gordon’s study shows that they “maneuvered to bring child welfare agencies into family

struggles on their sides.”

She writes that while there “was no Society for the Prevention

of Cruelty to Women, but in fact women…were trying to turn the SPCC into just that.”

Therefore, Gordon argues that the fact, “That family violence became a social problem at

all, that charities and professional agencies were drawn into attempts to control it, were as

much a product of the demands of those at the bottom as of those at the top.”

Gordon

warns that social control critiques can often over determine the power of professionals to

oppress persons in poverty. She warns that we must not overlook the very real harms that

“Family Violence, Feminism and Social Control”, ibid at 458.

Ibid.

Ibid at 472.

Ibid at 475.

are being perpetrated by family violence in a bid to understand the power effects of how

the problem of family violence is defined and addressed.

Particularly important for this thesis, Gordon argues that social control as a

critique assumes a private sphere of the family which has been immune from regulation.

The private sphere of the family is conceived of in terms of a natural sphere of autonomy

while social control theories see the public sphere is invasive and coercive. In contrast, she

argues that “no family relations have been immune from social regulation” and further,

that the history of this social regulation is not just about domination, but about conflict.

In order to move beyond a social control critique, sociologists Philip Corrigan and

Derek Sayer developed a notion of moral regulation to account for the ways in which state

agencies can draw upon moral projects to maintain social order. The development of moral

regulation theory is generally attributed to their work in The Great Arch, in which they

write of moral regulation as:

[A] project of normalizing, rendering natural, taken for granted, in a word

“obvious” what are in fact ontological and epistemological premises of a particular

and historical form of social order. Moral regulation is coextensive with state

formation, and state forms are always animated and legitimated by a particular

moral ethos. Centrally, state agencies attempt to give unitary and unifying

expression to what are in reality multifaceted and differential historical

experiences to groups within society, denying particularity.

Corrigan and Sayer’s work posited how the British state normalized bourgeois

beliefs and interests as the shared values of British society; rendering natural beliefs and

values which were counter to the interests of the working class. The conduct of the working

class was depicted as counter to a natural moral order and linked to negative social

Ibid at 473.

Gordon, “Family Violence, Feminism and Social Control,” supra note 43 at 470.

Philip Richard D Corrigan and Derek Sayer, The Great Arch: English State Formation as Cultural

Revolution (Oxford: Blackwell, 1985) at 4.

consequences. Moral regulation as a method of maintaining social order has been

explained by Alan Hunt as taking the following general form:

In summary, moral regulation involves the deployment of moral discourses which

construct a moralized subject and an object or target which is acted upon by means

of moralizing practices. The implication of this conceptualization is that the ‘moral’

dimension is not a distinctive characteristic of the regulatory target but rather is

found in the linkage posited among subject, object, practices and their projected

social consequences.

State practices in maintaining social order may not be wholly repressive. They may

encourage individuals and groups to internalize certain values and beliefs and to govern

themselves accordingly. In Corrigan and Sayer’s work, they show, however, how these

moralized values and beliefs were in fact beliefs and interests with a particular political

and economic function. Their work is very much focused first, on the state and state

agencies, and second, on how moral regulatory practices are engaged to reinforce class

relations.

However, again, critical feminist theorists of welfare reform caution that the

history of welfare reform and its effect on the position of women on assistance is not

understandable with a focus on the maintenance of class relations only. In her 1998 book,

No Car, No Radio, No Liquor Permit: The Moral Regulation of Single Mothers in Ontario,

1920-1997, Margaret Jane Hillyard Little has applied moral regulation as a lens through

which to understand the regulation of single mothers on social assistance in Ontario. She

writes that in her 70-year retrospective of Mothers’ Allowance in that province, moral

regulation theory revealed not just class inequality, “but also, gender, race, and sexual

inequalities.”

Contrary to a strict Marxist approach, Little argues that understanding the

Alan Hunt, “Moral Regulation and Making-up the New Person: Putting Gramsci to Work” (1997)

1.3 Theoretical Criminology 275 at 280.

Little, supra note 63 at xviii.

moral regulation of single mothers reveals that not all policies of Ontario’s Mothers

Allowance functioned to reinforce “bourgeois economic interests”. She writes:

There were other less costly and less cumbersome bureaucratic processes to ensure

that the poor subdued workers’ demands for better wages and remained a ready

reserve army of labour. Also, the investigation of minute aspects of a single

mothers’ life – which included her dress, language, attitude and behaviour –could

not be justified in purely economic terms. These intrusive procedures suggest that

gender, race, and sexual definitions of morality often predominated in the everyday

administration of this policy.

Little writes that the types of mother-headed families that received mothers

allowance was based upon a determination of moral worthiness, particularly in the early

years of the program. Widows who had lost their husbands were determined to be morally

blameless for their poverty and therefore eligible for assistance. Central to this notion of

the moral worthiness of women was the idea that the root of poverty was individual

blameworthiness. Only those women who could be equated with a morally upright

motherhood could be seen as blameless for their poverty. It was only these women, who as

circumstances would have it, had lost their male breadwinner, whose assistance the state

had the obligation to ensure. Unwed mothers, on the other hand, because of their

presumed sexual promiscuity having conceived a child out of wedlock, were not eligible for

assistance and were deemed unworthy. Thus, the provision of allowances relied upon

dividing between the deserving and undeserving in determining eligibility and drawing

upon racialized, gendered, and sexualized norms to do so.

The history of welfare is replete with the moral regulation of women and racialized

families and the construction of the deserving/undeserving poor.

This construction has

Ibid.

Alan Hunt argues that the history of the construction and regulation of poverty in general has

been an arena of moral regulation. See Hunt, supra note 76 at 280-81:

‘[P]overty’ has historically been predominantly an arena of moral regulation not because

poverty is necessarily a moral issue, but because the construction of its objects of regulation

have been moralized (vagrancy, paupers, idleness, etc). It was only with the ‘discovery of

important implications for how the state encounters the subject of assistance. The

deserving poor are more likely to receive assistance without stigma while the undeserving

poor tend to be penalized by a more repressive interaction with agents of welfare. High

levels of surveillance, intrusions on privacy and punitively low assistance rates are but

some of the ways in which welfare policy structure the interaction with the undeserving

poor.

In order to understand how law and welfare policy intersect to regulate the lives of

families in poverty, then, it is important to understand how law is involved in promoting

or challenging the moral regulation of women as wives and mothers and how this

reinforces or challenges overarching gendered, racialized and sexualized inequalities.

Depicting unmarried mothers as presumptively morally blameworthy and undeserving

has wider consequences for the position of women in general – for assumptions about

proper sexuality, about race, ability, and about women’s roles in the family and society –

and without understanding how law and welfare perpetuate these ideas we will not be

grasping how the state and legal system perpetuates or challenges the subordination of

women and how the legal regulation of the family plays into this subordination.

In the history of child protection law and of welfare in general we see a number of

instances where child protection law and practice draws upon this moral regulation of

families in poverty, particularly where this moral regulation aligns with the interests of

welfare policy. Early temperance movements which moralized drinking and extrapolated

to a range of social consequences as a result of intemperance were integral to the

emergence of cruelty to children as a legal problem. Anxiety over juvenile delinquency and

unemployment’ at the end of the 19th century as something that was the result of economic

processes rather than individual fault that it became, for a period at least, a matter of socio-

economic rather than moral regulation, only to return more recently to the moral realm

with the discovery of ‘welfare scroungers’.

deviance of the children of the poor gave rise to the juvenile delinquents system which

helped to professionalize and bureaucratize child protection work in Nova Scotia. And

finally, the moral regulation of unwed mothers and a deep suspicion of their deviant

sexuality provided a major focus of child protection and child welfare work late into the

late-1960s in this province. Without understanding how law informs or is informed by this

moral regulation – that is, the “rendering natural, taken for granted, in a word ‘obvious’

what are in fact ontological and epistemological premises of a particular and historical

form of social order” – we are unable to grasp the significance for families in poverty, of

the concepts that law uses to both pose, and address, the problem of harm to children.

Psychiatry and the Social and Legal Regulation of the Family in Poverty

The categories of liberal legalism which make up the child protection system such

as harm and risk of harm to the child, family autonomy, and the best interests of the child,

are presented as ostensibly neutral, objective categories. How do we explain, therefore, the

influence of a moralized form of regulation on a system of thought that sees itself as

divorced from morality? Further, in a contemporary legal era that is much more alive to

gendered and raced oppression than earlier years, how do we explain the influence of

moral regulation which is suffused with gendered and raced assumptions of propriety and

fitness? The answer may lie in interaction between law, psychiatry,

and moral regulation.

Nancy Fraser and Linda Gordon, for example, have written how in the United

States welfare discourse has associated welfare “dependency” with individual pathology.

See Judith Mosoff, “Motherhood, Madness, and Law” (1995) 45 UTLJ 107.

Nancy Fraser and Linda Gordon, “A Genealogy of Dependency: Tracing a Keyword of the U.S.

Welfare State” (Winter 1994) 19.2 Signs 309 at 325.

They write that in the United States, the discourse of welfare dependency is increasingly

associated with matters of a pathological constitution – addiction, psychological

predisposition in teen mothers to show moral/psychological immaturity, codependency,

etc.

In this way, moral evaluations about the proper conduct of women and mothers are

hidden behind supposedly objective psychological evaluations. While contemporary

society recognizes the inappropriateness of overtly racial and gendered uses of the

concepts of dependency and pauperism that were used in welfare’s past, Fraser and

Gordon write that, “The moral/psychological register is expanding, therefore, and its

qualitative character is changing, with new psychological and therapeutic idioms

displacing the explicitly racist and misogynous idioms of the industrial era.”

This

expanding of the moral/psychological register in welfare policy has also seen echoes in

contemporary child protection policy. Increasingly, the knowledge of psychological and

psychiatric professionals is called upon to assess the potential risk posed by parents to a

child. However, as some theorists have argued, this psychiatric prediction of risk has

served to interpret the consequences of social and economic inequality – much as

moralizing judgements once did – as the consequence of individual pathology.

While the early years of child protection work were carried out by philanthropists

and other “child-savers” who relied upon an overtly moralized and religious discourse,

child protection knowledge beginning in the early 21st century relied heavily upon the

insights of medicine, psychology and psychiatry. As I will detail in Chapter 3 of this thesis,

by the early decades of the 21st century child protection work was carried out within the

Ibid.

Ibid at 317.

See Karen Swift, “’Risky Women’: The Role of ‘Risk’ in the Construction of the Single Mother” in

in Shelley AM Gavigan and Dorothy E Chunn, eds, Legal Tender of Gender, supra note 41 at 143;

Annette R Appell, “Disposable Mothers, Deployable Children (book review)” (2003-2004) 9 Mich

J of Race & L 421; Mosoff, supra note 80.

juvenile delinquent regime in Nova Scotia and was dominated by denominational

institutions. However, within these religious institutions were psychiatrists and social

workers who were changing the discourse of child protection work based upon their

insights in this growing field. It is evident from the juvenile court reports at this time that

the juvenile court judges which administered child protection laws were heavily influenced

by this growing medicalization of notions of the best interests of children. By

understanding the ways in which the insights of psychiatry have through history informed

the content of objective legal notions of harm to children, the best interests of children,

and even family autonomy, we gain insight into the social regulation of children and

mothers in poverty.

Social theorists inspired by the work of Michel Foucault have attempted to

understand the operations of power while at the same time shifting an analytic focus away

from the role of the state. In looking to the involvement of non-state actors in the processes

of power, these theorists have examined the role of psychiatrists and psychiatric

knowledge in maintaining social order through the regulation of persons and populations.

Nikolas Rose, for example, has written extensively on the role of psychiatry in the

techniques of liberal government; government understood in the Foucauldian sense of the

“forms of thought and action that seek to conduct the conduct of others.”

Rose writes

that,

Psychiatry has, since the 19th century at least, been intrinsically bound to

problematics of government. Indeed the birth of psychiatry as a ‘know how’ of

conduct in the 19th century was part of a fundamental shift in our experience of

ourselves in ‘the west’: the individuality and vitality of the human being became an

object for positive knowledge; authority acquired to the obligation to act upon the

conduct of human individuals in the light of positive knowledge; positive

knowledges of what it was to be human began to shape the ethical regimes

according to which individuals came to understand, judge and act upon

themselves. Psychiatry, from this perspective, is intrinsically bound to the

Nikolas Rose, “Psychiatry as a Political Science: Advanced Liberalism and the Administration of

Risk” (1996) 9.2 History of the Human Sciences 1 at 3.

changing ways in which human beings have tried to govern themselves – not just

to changing ideas or models of human nature, but to the changing ethical field

within which such understandings of what it is to be human are linked to

vocabularies and systems of judgement about conduct and to techniques for acting

upon it to improve it.

But the role of psychiatry in governing the conduct of people and populations is not

static and Rose identifies four distinct periods in history in which psychiatry has acted in

distinct ways to “propose new technologies for the regulation of conduct”.

These periods

are important for understanding psychiatry’s contributions and correspondence to overall

shifts in political government as well as for understanding its role in moral regulation.

Rose’s periodizations assist in understanding how psychiatric and psychological regulation

is dependent upon establishing a grid for the normal and abnormal that can often map

onto moral or ethical shifts over time.

Rose’s periodization for the administrative role of psychiatry begins with

psychiatry in the asylum of the 19th century. In this era of the asylum, Rose explains that

psychiatry was bound up with Victorian philanthropic projects including “the

transformation of subjects into citizens who would regulate their own conduct according

to norms of prudence, order, temperance, continence, responsibility and so forth.”

observing, classifying and working upon the “mad” in the asylum, psychiatrists began to

develop a classification of normal/abnormal which was capable of diagnosing and then

therapeutically engaging with the subject. Cure was understood in terms of “when the mad

person was restored to the status of free citizen” and capable of acting in concert with

norms of civility.

Ibid.

Ibid at 6.

Ibid.

From this early age of psychiatry in the asylum, Rose writes that psychiatry and

psychology began to leave the walls of the asylum and work upon the population in the

search for “degeneracy”.

It is in this era where we see persons that threatened social order

identified and worked upon by various means including eugenics, hygienic movements,

segregation, etc. In this era we see psychiatry working upon larger social problems in “bio-

medical” terms. Rose singles out “syphilitics, imbeciles, paupers, criminals, gamblers,

idiots, drunkards, vagrants, the mad, the unemployable, the tubercular” who were targeted

by this psychiatric intervention in the name of social order.

Rose indicates that juvenile

delinquency was a part of this period of targeting degeneracy.

In Rose’s third periodization beginning in the 1920s and 30s – the era of ‘mental

hygiene’ – he writes that a new “’social vocation’ for psychiatry was born, one where

psychiatric expertise claimed a role in relation to the management of social ineptitude and

inefficiency in all social institutions.”

The role of psychiatry in this era was much more

wide ranging than merely focusing on those labelled “mad” or “abnormal”. In this era

psychiatry entered the fora of the school, army or factory and set out techniques for the

prevention and treatment of poor mental hygiene. The home in particular became a focus,

as a nexus of relationships affecting the mental hygiene of the child. In this era, Rose

explains that

Social workers became case-workers, with a new role in linking up the home, the

school, the court and the clinic, the playground and the street around the focus of

the individual case; the person with his or her biography and family was now to be

the object of documentation and professional supervision. A new normalizing

scrutiny and evaluation spread into the school, the army, the factory and

elsewhere.

Ibid at 8.

Ibid.

Ibid at 10.

Ibid at 11.

Finally, Rose situates the political role of psychiatry within the frame of advanced

liberalism at the end of the 20th century. Following the work of Robert Castel,

Rose has

written that psychiatry at the end of the century saw a shift from the language of

dangerousness to the language of risk.

Rose posits that, “The language of risk is indicative

of a shift towards a logic in which the possibility of incurring misfortune or loss in the

future is neither to be left to fate, nor to be managed by a providential state.”

Risk

management becomes the new buzzword for both individuals and authorities. Individuals

and families are taught to bring future consequences into the present and to manage the

risks that confront them through calculation and assessment.

Rose writes that the techniques of psychiatry take on such prominence in advanced

liberal thinking as psychiatry – as a field which claimed to be able to “identify difficulties

of conduct”

– informs governments which problems had to be governed and how.

Psychiatry, then, provides the knowledge for the population as a whole to self-manage, not

just for the classical psychiatric patient. The individual who acts against her own self-

interest is singled-out as risky, as a psychiatric subject which must be controlled and

managed through the “administrative function of expertise.”

Rose writes that, “Failures

of management of the self, lack of skills of coping with family, with work, with money, with

housing, are now all, potentially, criteria for qualification as a psychiatric subject.”

In this

See Robert Castel, “From Dangerousness to Risk” in Graham Burchell, Colin Gordon and Peter

Miller, eds, The Foucault Effect: Studies in Governmentality, (Chicago: University of Chicago

Press, 1991).

Rose “Psychiatry as a Political Science”, supra note 85 at 13.

Ibid.

Ibid at 4.

Ibid at 17.

Ibid at 15.

way we see a shift from socialized responsibility in the mental hygiene era to personal

responsibility in advanced liberalism.

Rose’s periodizations and observations on the role of psychiatry are important to

understanding the emergence and significance of distinct periodizations of child

protection law and practice in Nova Scotia, although they do not map on exactly. To begin

with, Rose’s periodization of asylum psychiatry is instructive for understanding the

emergence of cruelty to children in the Victorian era. However, the asylum remained an

important part of child protection practice in Nova Scotia until well after the post-war

years, when Rose indicates that the mental hygiene movement would have been well

underway. Therefore, when applied to the case of Nova Scotia, Rose’s periodizations –

especially asylum and degeneracy – overlap.

Furthermore, because of Nova Scotia’s long reliance on institutions, Rose’s mental

hygiene era emerges much later in Nova Scotia than Rose’s periodization. Preventive

casework in the home, for example, did not become a prominent part of child protection

practice until the mid-t0-late 1950s in Nova Scotia. Finally, as I will argue, the elements of

advanced liberal administration of risk did not come into prominence in Nova Scotia until

the late-1980s and 1990s. Regardless of these small inconsistencies, Rose’s overall

periodizations and shifts in psychiatry have provided an important framework for the

project and for understanding how the influence of psychiatry on child protection

informed the various transformations in the concept of harm to children and best interests.

Rose’s Foucauldian-influenced analysis of the role of psychiatry in regulating the

conduct of persons is important for understanding how ostensibly “non-political” or non-

state actors can end up exerting a great amount of influence over the government of

individuals. In particular, his work helps to illuminate how reliance on the determinations

of psychiatry by law in fact implicates law in the moral regulation of populations with

reference to the ostensibly neutral category of the normal.

100

In the era of juvenile

delinquency, for example, child protection work became focused not on the criminal acts

of children or their parents but on the types of children before the court. As opposed to

looking at the transgression committed by the delinquent that resulted in a child being

brought before the court, juvenile court judges began to expound on the moral deficiencies

in the child’s constitution and upbringing that had brought him before the court.

As work with juvenile delinquents in the institutions became more scientific with

the hiring of psychiatrists and became less explicitly moral, drawing upon more objective

determinations of normality, judges affirmed the diagnosis of children as “feebleminded”,

for example, and ordered their confinement in reformatories. The actual work of the

reformatories continued to impose this grid of normalization on children, classifying

children with respect to their distance to the norm and gearing their training towards that

classification. What this neutral, scientific, medico-legal determination of harm and best

100

In Rose’s work, the history of psychiatry is presented in order to understand how the subjectivity

of the citizen is produced in part by psychiatric knowledge. Psychiatry assists then in maintaining a

liberal social order as people conduct themselves in accordance with liberal values of freedom and

autonomy and not as a result of coercion by an external force such as the state. For example, Rose

argues that government of the conduct of individuals through the family is accomplished not by

repressive means:

If the family came to serve social objectives, it was not in spite of the wishes of women and

men, but because it came to work as a private, voluntary and responsible agency for the

rearing and moralising of children and promoting their physical and mental welfare.

Domestic, conjugal and parental conduct is increasingly regulated not by obedience

compelled by threat of sanction but through the activation of individual guilt, personal

anxiety and private disappointment. Husbands and wives, mothers and fathers themselves

regulate their feelings, desires, wishes and emotions and think themselves through the

potent images of parenthood, sexual pleasure and quality of life. In the necessary gap

between expectation and realisation, between desires and satisfaction, anxiety and

disappointment fuel the search for expert assistance. It is this pleasure/anxiety relation that

drives the government of personal life; it is this which is both installed by the tutelage of

expertise and which provides it with its voluntary relation to its subjects. These kinds of

mechanisms, not those of social control, domination and subordination, link up the private

family with social, economic and political objectives through the maximisation of

consumption, the promotion of subjectivities and the construction of social solidarity

through the rituals of personal life.

Nikolas Rose, “Beyond the Public/Private Divide: Law, Power and the Family” (1987) 14 J of Law

and Soc 61 at 73.

interests served to obfuscate, however, was the raced, gendered and ableist assumptions

that were drawn upon in psychiatric and legal determinations of delinquency and best

interests. In this era we see the normal child as an expression of the white, middle class,

able-bodied Christian child. In this era we also see the opening of asylums such as the Nova

Scotia Home for Colored Children and the Shubenacadie Indian Residential School which

worked upon racialized children in the name of the best interests of this abstract “normal”

concept of the child. Therefore, in understanding how non-state actors such as

psychiatrists and social workers exert a great deal of influence in governing persons,

activities that were depicted as “private” or “natural” or “objective” are de-naturalized and

their “public” and political character revealed.

Rose’s explication of the history of psychiatry is presented in order to understand

how the subjectivity of the citizen is produced in part by psychiatric knowledge. In this

way, Rose attempts to understand how psychiatry in shaping subjectivity leads people to

govern themselves, thereby maintaining social order. Psychiatry assists in aligning this

conduct with the liberal values of freedom and autonomy as social order is maintained not

by the hand of a repressive state, but rather, by people conducting themselves in

accordance with these normalized notions of freedom and autonomy. For example, in his

explication of the role of psychiatry in the early years of the asylum, Rose writes, “The

asylum became one of the vast machines of morality invented in the 19th century, whose

rationale was the production of citizens who could be free to the extent that they had taken

the obligations of moral, prudent and self-responsible conduct into themselves.”

101

The

focus of Rose’s work and the work of other Foucauldian social theorists, therefore, is on

the construction of subjectivity and on the way that power works, not repressively, but

through the production of subjectivity – of the way people understand themselves.

101

Rose, “Psychiatry as a Political Science”, supra note 85 at 7.

Furthermore, because power operates through the notion of freedom and autonomy in this

way, for Foucauldian social theorists there is little normative force in liberal notions of

“freedom” or “autonomy”.

In this thesis, however, I am focused on how law and social policy govern the

conduct of marginalized families. As such, I have not “de-centered” the role of the state

although I recognize the importance of the disciplinary regime. Furthermore, while I agree

that the promotion of certain subjectivities is relevant to understanding the regulation of

families in poverty, we must also understand how these subjectivities inform the

relationship between the individual, the family and the state. In a neoliberal age persons

in poverty are subject to repressive forms of regulation in their failure to live up to the

enterprising, independent individual. This regulation justifies the reduction of

government support for social services and reduced eligibility for individuals, as well as

the policing of the lives of marginalized families through criminal and quasi-criminal

laws.

102

What’s more, gender, race, ability and class intersect to further marginalize the

positions and lives of those who are positioned at these intersections.

103

As Joan Sangster

has argued with reference to her historical study on the criminalization of the conduct of

girls and women in the Ontario, focusing too much on the discursive aspect of moral

102

Dorothy Chunn and Shelley Gavigan, “Welfare Law, Welfare Fraud, and the Moral Regulation

of the ‘Never Deserving’ Poor” (2004) 13(2) Social & Legal Studies 219.

103

Smith, supra note 50 at 72:

Although it is certainly true that neoliberalism singles out the poor for some of the harshest

forms of regulation, capital and its allies the State, the caring professions and the social

science academy, do not treat the poor as a homogenous mass. On the contrary, these

institutions are deeply committed to racially inspired and gender segregated interventions

into the intimate lives of the poor that operate along multiple axes at the same time.

regulation in turn obfuscates the operations of the state and the reality that some

populations “experienced a more repressive version of regulation”

104

Finally, while I attempt to understand the moral regulation of socio-economically

marginalized families and children, this is in order to gain greater understanding of a

certain mode of legal regulation. As Fudge and Cossman have pointed out in their work on

the interaction of law, privatization and feminism: “Law is an important site for the

production of discourses that play a powerful role in shaping human consciousness and

behaviour. At the same time, its coercive force distinguishes it from other discourses.”

105

For marginalized women and families that do not fit prevailing social norms, the child

protection system steps in and legitimizes the most coercive of interventions: removal of

the child from the home. In this project I have heeded the warning of critical feminist

socio-legal theorists, Gavigan and Chunn on the need to understand the coercive effects of

legal and moral regulation on the lives of women and children in poverty. They write:

In our view, the concept has analytic utility as long as we continue to attend to the

location of moral regulation in social policy and forms of law and state, and

maintain an emphasis on the contradictions, social antagonisms and class relations

in a given social formation. The hard lives of poor women and their children impel

us to resist any form of analysis that is also not attentive to the jagged edges of

coercive laws that condemn them to the new ranks of the never deserving poor.

106

So what potential is there for law to challenge the interaction of coercive social and

legal regulation? In Foucault’s own understanding of the interaction between law and the

disciplinary regime, he argued that eventually law began to act more and more according

to the standards of normalcy developed by the psychiatrists, as opposed to assertions of

104

Joan Sangster, Regulating Girls and Women: Sexuality, Family, and the Law in Ontario, 1920-

1960 (Oxford: Oxford University Press, 2001) at 3.

105

Cossman and Fudge, supra note 41 at 5.

106

Gavigan and Chunn, “Welfare Law, Welfare Fraud”, supra note 102 at 237.

right of traditional liberal legalism.

107

Some scholars have referred to his as the “expulsion”

thesis, arguing that Foucault saw the disciplinary complex and the influence of the norm

eventually expelling the juridical form of law.

108

Rather than adhering to this notion of the

expulsion of law, however, I have found the work of Ben Golder and Peter Fitzpatrick

illuminating on the interaction between law and psychiatric power and on the ability of

legal concepts to serve as a critique of disciplinary power.

Golder and Fitzpatrick argue that rather than expelling law, there is a necessary

relationship between law and disciplinary power and that in fact, psychiatric power is

“constitutively dependent upon law”.

109

Disciplinary power is dependent upon law first, to

support its making of a knowledge claim about the abnormal subject, and second, to assist

it in responding to the recalcitrant subject.

110

While law is seen to act on the edges of

disciplinary power, as a frame restraining its excesses, its failure to adjudicate on the

truthfulness of disciplinary knowledge in fact gives the core of this power the appearance

of coherence. Golder and Fitzpatrick explain:

[B]y purporting to exercise its supervisory jurisdiction only over the more

egregious aberrations, abuses and excesses of disciplinary power, law confirms the

basic claim at the heart of disciplinary power to adjudicate on questions of

normality and social cohesion. In so doing, it inscribes the disciplinary project in

the very nature of things, ‘confirming’ its tenuous grasp on a scientifically

107

Michel Foucault, The History of Sexuality, Volume 1: An Introduction (New York: Random

House, 1978) at 144. Foucault wrote of the law in the normalizing society:

I do not mean to say that law fades into the background or that the institutions of justice

tend to disappear, but rather that the law operates more and more as a norm, and that the

judicial institution is increasingly incorporated into a continuum of apparatuses (medical,

administrative and so on) whose functions are for the most part regulatory. A normalizing

society is the historical outcome of a technology of power centered on life.

108

Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance

(London: Pluto Press, 1994).

109

Ben Golder and Peter Fitzpatrick, Foucault’s Law (London: Routledge, 2009) at 61.

110

Ibid.

comprehended and disciplinarily administered world and simply acting to correct

its application to those cases where something goes amiss.

111

Where law pulls back its authority and refuses to supervise, it is affirming that the

knowledge claims made by disciplinary power are “in the nature of things”, or in other

words, are just simply claims to truth.

112

However, Golder and Fitzpatrick point out that

“the mere factuality of the scientific fails adequately to deal with instances of utter

recalcitrance” and so disciplinary power relies upon law not only for its truth claims, but

to assist in enforcing its authority over the recalcitrant subject.

113

Golder and Fitzpatrick go a step further. While showing that disciplinary power

does not expel law (and therefore that a critical evaluation of law is important and relevant)

they then go on to explore how Foucault’s notion of power can be fruitfully applied to

understanding law as itself a source of power. They therefore present a Foucauldian theory

of law that Foucault himself did not adhere to but which is nevertheless consistent with

and informed by his theoretical work.

Golder and Fitzpatrick assert that there are two dimensions or “modalities” to law:

one that is more static and determinative, that is “on the side” of the norm. And the other

aspect of law is the law that is always in “constitutive engagement” with that which resists

it.

114

It is this second aspect of law which allows us to see law as a responsive and engaged

source of power, responding not just to the truth claims of psychiatry, for example, but to

demands of right brought before the law. Or, to respond to some of Foucault’s feminist

socio-legal critics, this responsive law does not just reinforce patriarchal power, for

111

Ibid at 64.

112

Ibid at 66.

113

Ibid at 67.

114

Ibid at 71.

example, but also responds to feminist challenges within law. Golder and Fitzpatrick write

of the “responsive” dimension of law that,

[L]aw must necessarily assume a labile existence, and this is what we have been

calling the responsiveness of Foucault’s law. Whilst law must assume a definite

content – and this content is given to law in standard jurisprudential perceptions

by such entities as a sovereign, a class, a society and so forth – the law cannot

remain tied to any given content and must incorporatively engage with what is

other to it, with resistances and transgressions which challenge its position.

115

Therefore, the same flexibility that allows law to respond to and accommodate itself to the

normalizing discourse of disciplinary power allows law to respond to that which is outside

of this power.

Taking into account the character of law’s constitutive engagement with

disciplinary power allows us to understand how law may respond to the recalcitrant

subject by repressive means and how psychiatry in turn serves to render this repressive

regulation to be in the best interests of “abnormal” persons. But Golder and Fitzpatick’s

notion of the responsive side of law is important as it also allows us to see the potential for

challenging this regulation. In her work on the child welfare system, Hester Lessard, for

example, has problematized the concepts of family privacy and autonomy in the context of

the child protection law as a flexible legal concept capable of providing for either a

supportive or coercive engagement with families. In particular, she shows how, over time,

this flexibility comes into view and allows us to critically evaluate the content of this

malleable liberal language:

The malleable liberal language of respect for the integrity and autonomy of the

family, in an earlier era, was more resonant with social democratic values. It

signaled support rather than the right to be left alone. Recently, however, liberal

values of respect for family have provided the rhetorical justification for a family

privacy rather than family support approach to the issue of responsibility for child

rearing. A glance back at the history of child welfare regimes reveals the tension

and overlay of these two different meanings-family support and family privacy-of

state intervention in families.

116

115

Ibid at 77.

116

Lessard, “Empire of the Lone Mother”, supra note 45 at 725.

Subjecting the malleable liberal language of family autonomy to historical critique

provides us with a critical perspective on the values, interests and beliefs that make up the

concept. Understanding how law may pull back from scrutinizing disciplinary power which

is at the heart of so many determinations of harm, risk of harm and the best interests of

children helps us to de-naturalize these concepts and understand their potentially political

character. On the other hand, understanding the responsiveness of law provides us with a

means to imagine a critical feminist concept of family autonomy which may provide

greater justice for families and children in the child protection system.

Developing a Feminist Legal Account of Family Autonomy

Feminist legal theorists have thoroughly critiqued the liberal notion of privacy and

liberal legalism’s maximizing of this notion of freedom by imposing a strict divide between

the public and private spheres.

117

Liberal legalism protects the right to freedom by

patrolling the boundary at which public intervention is warranted and justified in the

private sphere. Some feminist legal scholars, however, have argued that the construction

of the private sphere supports classed, raced and gendered oppression. With respect to the

oppression of women, feminists have argued:

[P]rivileging ‘privacy’ or the ‘right to be left alone’ has, historically, been bad for

those who lack the means or opportunities to exercise much meaningful choice

over the course of their lives. Thus women’s traditional confinement in the ‘private’

sphere has been widely recognized as socially oppressive and personally

damaging.

118

Furthermore, feminist legal theorists such as Catherine MacKinnon have shown how law’s

insistence on a private sphere has served to reinforce patriarchal oppression:

117

Supra note 43.

118

Emily Jackson and Shelley Day Sclater, “Introduction: Autonomy and Private Life” in Shelley

Day Sclater et al, eds, Regulating Autonomy: Sex, Reproduction and Family (Oxford: Hart

Publishing, 2009) at 2.

Women in everyday life have no privacy in private. In private, women are objects

of male subjectivity and male power. The private is that place where men can do

whatever they want because women reside there. The consent that supposedly

demarcates this private surrounds women and follows us everywhere we go. Men

reside in public, where laws against harm exist – real harm, harm to men and

whoever has the privilege to be hurt like men – and follow them wherever they go.

…As a legal doctrine, privacy has become the affirmative triumph of the state’s

abdication of women. Sanctified by the absolution of law, the private is the

everyday domain of women in captivity, abandoned to their isolation and told that

is what freedom really means.

119

In this way notions of privacy or freedom in the private sphere are not natural, but

political categories, capable of justifying unchecked relations of power. For example, the

family regulated by the common law was structured by rules of marriage, property

ownership, inheritance, and guardianship which placed the husband as the sole source of

legitimate authority within the private sphere of the home. Besides the maintenance of

these legal rules, the state rarely intervened in any substantive way to challenge his

authority. While this sphere was depicted as a natural sphere free of regulation, in effect,

the private sphere of the common law family was thoroughly regulated by legal and social

rules setting in place a patriarchal order. In particular, feminists have shown how the

central liberal concepts of autonomy, liberty and privacy have been constructed so as to

support the strict liberal adherence to the public/private divide. The concept of autonomy,

they argue, reinforces the liberal individual concept of “man” as an atomistic as opposed

to embedded social being. In contrast, feminist theorists have shown how we are

constituted in our relationships with others.

120

119

Catharine A MacKinnon, “Reflections on Law in the Everyday Life of Women” in Austin Sarat

and Thomas R Kearns, eds, Law in Everyday Life (Ann Arbor: University of Michigan Press, 1993)

at 117-118.

120

Jennifer Nedelsky, “Reconceiving Autonomy: Sources, Thoughts and Possibilities” (1989) 7 Yale

JL & Fem 7; Catriona Mackenzie and Natalie Stoljar, eds, Relational Autonomy: Feminist

Perspectives on Autonomy, Agency and the Social Self (Oxford: Oxford University Press, 2000);

Jocelyn Downie and Jennifer Llewellyn, Being Relational: Reflections on Relational Theory and

Health Law (Vancouver: UBC Press, 2012).

But the drawing of a private sphere around the liberal family not only serves to

naturalize power relations within that sphere, but a strict liberal insistence on the division

of the public and private spheres has served to justify a lack of public responsibility for the

“private” sphere. In recent decades feminist legal theorists have critiqued and reconceived

of the central liberal concepts of independence, self-sufficiency, autonomy, privacy and

liberty in order to challenge the effects of the privatization of social benefits on the lives of

women and children. Feminist legal theorist Martha Albertson Fineman writes that,

“Perhaps the most important task for those concerned with the welfare of poor mothers

and their children, as well as other vulnerable members of society, is the articulation of a

theory of collective responsibility for dependency.”

121

As such, she critiques the liberal

interpretation of the concepts of independence, autonomy and self-sufficiency for its

assumption that responsibility for dependency is relegated to the private sphere of the

family.

Fineman writes that behind the valorized liberal concepts of independence,

autonomy and self-sufficiency lies the “assumed family”:

The assumed family is a specific ideological construct with a particular population

and a gendered form that allows us to privatize individual dependency and pretend

it is not a public problem. Furthermore, the gendered nature of this assumed family

is essential to the maintenance and continuance of our foundational myths of

individual independence, autonomy and self-sufficiency. This assumed family also

masks the dependency of society and all its public institutions on the

uncompensated and unrecognized dependency work assigned to caretakers within

the private family.

122

She articulates instead a critical feminist notion of autonomy that socializes responsibility

for caretaking work on the basis that dependency is not an aberrant state but, “unavoidable

121

Martha Albertson Fineman, “Cracking the Foundational Myths: Independence, Autonomy, and

Self-Sufficiency” (1999) 8.1 Am Uni J of Gender, Soc Pol’y & L 13 at 16.

122

Ibid at 14.

and inevitable; it is developmental and biological in nature.”

123

Recognizing that

dependency or vulnerability are not a choice but an inevitable state that we as members of

a society have all, and will all be in, grounds Fineman’s claim for seeing caretaking as a

social debt or collective responsibility rather than the private responsibility of families.

124

Therefore, in recognizing the collective responsibility for family autonomy Fineman

conceives of independence not as freedom from state intervention per se, but freedom

from coercive state intervention, with a corresponding right to supportive state

intervention. She writes:

My version of the new entity privacy, designed to complement the new family,

could be called “autonomy.” Autonomy in this sense would protect entity decision

making, giving the unit the space and authority to self-govern, and including the

right of self-definition. Autonomy does not presuppose that the family would be

separate from society. The family would be anchored firmly within society, and

subsidized and supported by market and state, but would retain authority within

its parameters. Privacy, just like subsidy, should attach to units performing

societally necessary and essential functions, such as caretaking.

125

She argues that independence and autonomy should be reconceived such that

autonomy is “gained when an individual has the basic resources that enable her or him to

act consistent with the tasks and expectations imposed by society.”

126

Rather than

eschewing independence, Fineman argues that “This form of independence should be

123

Martha Albertson Fineman, “The 2010 Randolph W. Thrower Symposium: The New Deal: From

De-Regulation to Re-Regulation: The Vulnerable Subject and the Responsive State” (2010) 60

Emory LJ 251 at 263.

124

In Fineman’s more recent work she uses the concept of vulnerability rather than dependency to

ground the claim to collective responsibility for caretaking work. Her use of the concept of human

vulnerability rather than dependency, she argues, captures the notion that “vulnerability arises

from our embodiment, which carries with it the imminent or ever-present possibility of harm, injury

and misfortune.” Ibid at 267.

125

Martha Albertson Fineman, The Autonomy Myth: A Theory of Dependency (New York: WW

Norton, 2004) at 303.

126

“Cracking the Foundational Myths”, supra note 121 at 25-26.

every citizen’s birthright, but independence in this sense can only be achieved when

individual choices are relatively unconstrained.”

127

Fineman’s demand for a sphere of familial independence, however, is not the

traditional sphere of privacy for the married heterosexual couple which has reproduced

gendered and sexualized subordination. She argues for a reconceived sphere of privacy

around the caretaker-dependent relationship which demands collective responsibility for

this relationship. The caretaker-dependent relationship is provided the capacity to self-

determine in the form of material supports from the state and supportive state policies, as

well as the right to demand a certain sphere of non-intervention. She writes:

[W]e can and should rethink privacy in such a way as to confer autonomy on

caretaking or dependency units. The beneficiary of this privacy is the unit, defined

through its functioning, not its form. In fact, the caretaking unit could adopt a

multitude of possible forms. The unifying idea that creates the "new family" is the

significance of the caretaker-dependent relationship.

Autonomy, my candidate for defining the "new" privacy to complement the new

family, would protect entity decision-making, giving the unit the "right" to self-

government. It would do so not in the sense that the new family privacy would

separate it from society; rather, the family would be anchored firmly within society,

subsidized, and supported by market and state, but retaining authority within its

parameters.

128

As opposed to figuring a sphere of privacy around the husband/wife, a sphere that

feminist theorists such as MacKinnon have characterized as the place where “women are

objects of male subjectivity and male power” Fineman argues for conceiving of family

privacy around the caretaker-dependent unit. “Properly conceived,” she argues, “privacy

as a principle of self-government allows the caretaker-dependent unit to flourish,

supported and subsidized by the larger society without the imposition of conformity.”

129

127

Ibid.

128

Martha Albertson Fineman, “Symposium: Privacy and the Family: Panel III What Place for

Family Privacy?” (1999) 67 Geo Wash LR 1207 at 1221.

129

Fineman, The Autonomy Myth, supra note 125 at 307.

By naturalizing the “dependent” or “vulnerable” half of the independence-

dependence dichotomy, the power of Fineman’s critique lies in her ability to de-naturalize

independence and to unmask the uncompensated and unrecognized work in the family

that must maintain this exceptional state of independence. This critique is illuminating for

the central concepts of child protection law as they assist us in seeing the ways in which

the concept of family privacy has obscured who actually takes responsibility for

dependency. In this way, she first demands that we see the reliance of some families on

outside support and subsidy as inevitable; not deviant. And second, she unmasks the

political dimension of family privacy which burdens mothers with dependency and

vulnerability, not simply because of the active “choice” of those mothers, but because the

liberal narrative of independence and self-sufficiency demands that they take on these

obligations. Mothers that seek support in order to live up to the obligations placed upon

them by the state and society are viewed as entitled to this support as of right, rather than

as dependant and pathological.

130

In drawing a sphere of privacy and autonomy around the mother-child

relationship, however, Fineman’s theory has faced challenge not only from those who see

her formulation of family autonomy as raising the specter of social control, but from

children’s rights advocates. Child rights advocates question how the private sphere may be

used to justify caretaker power over the child in the same way that women through history

have been the objects of male power in the private sphere. These advovates rightly worry

about the consequences this will have for addressing abuse to children.

131

130

For a discussion of the depicting of mothers on assistance as dependent and pathological see “A

Genealogy of Dependency”, supra note 81 at 309.

131

Barbara Bennett Woodhouse, “Symposium: Privacy and the Family: Panel III, The Dark Side of

Family Privacy” (1999) 67 Geo Wash LR 1247. In The Autonomy Myth, supra note 125 at 302,

Fineman responds to Woodhouse in the following manner:

While Fineman argues that “privacy should never condone abuse”

132

I hope that

this thesis will show that for families in poverty, constructions of what constitutes abuse

and who constitutes an abuser are deeply engrained in the way the private sphere has been

regulated by law and society. Legal definitions of harm to, and the best interests of,

children have themselves served to reproduce inequality and at certain points in history

justified the residual support of mothers and their children. In this thesis I will show that

in particular, certain mother-headed families – families for whom Fineman wishes to

provide a supportive sphere of family autonomy – have been targeted and marginalized by

the social and legal regulation of harms to children. In order to provide a just concept of

family autonomy for marginalized families we must be attuned to the ways that the social

and legal regulation of harms to children has, through history, served to reproduce

gendered, raced, ableist and classed inequality.

Woodhouse reaches for more than mere control over parents. With the objective of

children’s welfare as the organizing tool, she advocates for a more extensive sense of

children’s rights – “needs-based rights.” These rights are not associated with children’s

rights to autonomy or independence, but are the basis for a positive claim for basic nurture

and protection. These rights create responsibility, not only for individual parents, but also

for the larger community, and require political responses.

To some extent, Woodhouse’s concern with basic-needs rights reflects my own call for

collective responsibility for dependency. However, the identity of the rights holder and the

source of the right are different in important ways. My claim is a communal one – entity

focused and based on a claim of entitlement or right originating as a result of the societal

work performed by caretakers. Woodhouse’s model is not a compensatory one, but is based

on the status of the child as a future citizen. She positions the child as the claim holder and,

in doing so, conceptually breaks up the family into individual and therefore potentially

competing interests. This paves the way for claims of collective supervision and monitoring

of parental stewardship.

132

“What Place for Family Privacy?” supra note 128 at 1207 at 1219; The Autonomy Myth, ibid at

300-301. Fineman writes:

A more central criticism of privacy, from the perspective of this postscript, is presented by

those who focus on the rights of children. Family privacy in this regard protects parental

authority and autonomy. In this area, the tendency of privacy critics who see abuses has

been to individualize the family, by separating children out for special concern and state

protection. Some child advocates focus on physical and psychological abuse of children

within families. These seem to me to be easy issues (problems of definition aside). Privacy

should never be used to condone or obscure abuse.

In this thesis I will argue that a critical feminist concept of family autonomy for

child protection law and jurisprudence must be capable of questioning the need for, and

the nature of, state intervention into the family that is attendant to the ways that the

public/private divide may be obscuring relationships of power which are ultimately

harmful to the family and the child. I argue that a critical legal concept of family autonomy

must be attendant to the ways that ostensibly private agents reproduce political power in

setting out what constitutes harm to the child and the child’s best interests. In protecting

a robust presumption of family autonomy for marginalized families and children, the law

must also be attendant to the ways in which a focus on the limits of the right to a private

sphere can distract from questions about the quality of public responsibility for children

and families.

But, as Fineman argues, a feminist concept of family autonomy must not sacrifice

the family’s right to refuse the interventions of both state and non-state actors in the

decisions affecting the care and custody of their children. In this thesis I will show how at

points in the history of child protection the state has assumed almost total responsibility

for the child, and that this total responsibility and lack of a robust notion of family

autonomy came with its own dangers for children. In particular, we are now learning of

the abuses that resulted from a lack of family autonomy for Aboriginal and African-Nova

Scotian families caught up in the child protection regimes in Nova Scotia.

133

Racist,

patriarchal, ableist and classed depictions of children and parents as uncivilized, feeble-

minded, dependant and incompetent served to presume the beneficence of the state care

133

Truth and Reconciliation Commission of Canada, The Survivors Speak: A Report of the Truth

and Reconciliation Commission of Canada (Ottawa: Truth and Reconciliation Commission of

Canada, 2015), online: TRC Canada

<http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Survivors_Speak_2015_05_30_

web_o.pdf>; in June 2015 the Government of Nova Scotia announced a Restorative Inquiry into

the Nova Scotia Home for Colored Children, online: Restorative Inquiry

<http://restorativeinquiry.ca/restorative-inquiry>.

of these children. As the testimonials of the survivors of the Nova Scotia Home for Colored

Children and the Shubenacadie Indian Residential School reveal, the lack of a critical

concept of family autonomy for marginalized families had devastating effects not just for

parents, but for children and their communities.

In this thesis I present a critical feminist history of child protection law in Nova

Scotia in order to understand how the changing concepts of harm and best interests upon

which child protection decisions are based may be undermining important supports for

families and children in poverty. The legislating and adjudicating of concepts of harm to

children which set the limits of family autonomy for socio-economically marginalized

families, must be attendant to the social, legal, economic and political disadvantages faced

by that family and at the same time come to terms with the way that ostensibly apolitical

knowledge about those harms can serve to further disadvantage the child and the family.

The best interests of children from marginalized families likewise demand that courts

contextualize the needs and interests of the child in the social, economic, and political

context in which the child finds herself. Without subjecting notions of harm and best

interests to critical analysis, child protection law and jurisprudence will end up

reproducing the same processes of raced, gendered, ableist and classed subordination that

rendered the child in poverty vulnerable in the first place.

Chapter 2:

19th Century Nova Scotia: The Breakdown of the Victorian Family and the

Emergence of Cruelty to Children as a Legal Problem

Our laws… have in one instance made a wise provision for breeding up the rising

generation; since the poor and laborious part of the community, when past the

stage of nurture, are taken out of the hands of their parents, by the statutes for

apprenticing poor children, and are placed out by the public in such a manner, as

may render their abilities, in their several stations, of the greatest advantage to the

commonwealth. The rich indeed are left at their own option, whether they will

breed up their children to be ornaments or disgraces to their family.

134

Today we take for granted that the state has a mandate to intervene in families and

remove children from harm – but such intervention is premised on a modern notion of the

state and indeed, a modern notion of the family. Before the emergence of child savers and

cruelty to children legislation, the Victorian concept of the family saw the welfare of

children and wives as completely facilitated either within the private sphere of the family

or totally within the public sphere by poor relief. It was the job of husbands and fathers to

provide for the financial welfare of children and the role of mothers to provide for their

personal wellbeing. If the father could not provide for the family the family went on poor

relief and became the responsibility of the taxpayers, or the overseers of the poor. The

family taken care of in the public sphere lost all sense of privacy or autonomy. As will be

discussed, should the poor family apply for poor relief in the counties its members could

be sold at auction to the lowest bidder for their “settlement” or if in Halifax, could be made

to live together in the Poor House or workhouse.

135

Cruelty to children legislation and consequently, the treatment of cruelty to

children as a legal problem emerged at the end of the 19th century amid a climate of reform

134

Sir William Blackstone, Commentaries on the Laws of England, Book 1, chapter 16.

135

Senior Scribes of Nova Scotia, Poverty, Poor Houses and Private Philanthropy (Halifax:

Communications Nova Scotia, 1996) at 15-19.

– reform of the poor law, reform of family law, and reforms for greater rights and

protections for women, children, and disabled persons. Cruelty to children as a legal

problem was not just a product of the changing way in which society thought about the

position of children. Towards the end of the 19th century, growing industrialization and

urbanization, and out-migration exerted a great amount of pressure upon the Victorian

family in Nova Scotia. The Victorian family maintained by the common law – with the

husband as the sole source of legal and public authority in the family – was no longer

capable of addressing the social, economic and political problems faced by its members.

The end of the 19th century saw new roles for women and children in an emerging

industrial capitalist society. These new roles and positions required a rethinking by law of

their positions under the common law. By the end of the 19th century there was a

proliferation of legislation reordering the private relationships within the common law

family. The husband was no longer the sole legal personality of the family, nor were

children the sole property of the father. Wives and children became distinct legal

personalities and the state began to intervene to assert women’s rights to separate

property,

136

and their rights to custody of their children on the basis of the welfare of the

child.

137

However, the family law reforms introduced at the end of the 19th century did not

provide the same formal legal protections for women in families in poverty.

In this chapter I will provide an overview of the legal, social and political changes

that accompanied both family law and poor law reforms informing the emergence of

cruelty to children as a legal problem. The focus of much of the analysis will be centered

on reform in the city of Halifax as the city was the center of much philanthropic work at

136

Of the Property of Married Women, RSNS 1884 (5th Ser) c 94.

137

Custody of Infants Act, SNS 1893, c 11.

the time. It is noteworthy that the poor law regimes in the counties and the city in 18th and

19th century Nova Scotia differed in that the counties provided for “outdoor relief” but since

1759, Halifax provided only “indoor relief”, or relief in the Poor House.

138

Furthermore, the

Society for the Prevention of Cruelty which introduced and enforced the Prevention and

Punishment of Wrongs to Children Act,

139

was situated in Halifax.

In this chapter I will show how family law reforms such as the introduction of the

Prevention and Punishment of Wrongs to Children Act would have affected families in

poverty primarily. Many of the harms which constituted “wrongs to children,” both in the

Prevention and Punishment of Wrongs to Children Act and in other “domestic relations”

legislation passed at the time, included harms that captured much of the activity of the

poor: truancy, street hawking, and working in “unsavoury” places, to name a few. Not only

were these activities harmful to the image of childhood as a sphere of dependence and

innocence as conceived by the Victorians, but these wrongs to the child were also harmful

to the social order. The criminalization of this activity (which may also have supplemented

the earnings of poor households) as wrongs to children for which removal of the child from

parental care and custody was legally justifiable, served to add a new dimension to the

content of the common law rules regarding custody.

140

As far as parents in poverty were

concerned, their legal rights to retain care and custody of their children would be

138

Stan Fitzner, The Development of Social Welfare in Nova Scotia: A History (Halifax:

Department of Public Welfare, 1967) at 9.

139

SNS 1882, c 95.

140

Pursuant to the common law, the father was responsible for the education, protection and

maintenance of the child, but the common law did not set out in a substantive way what the content

of child caring looked like for the patriarchal family. Commentaries on the Laws of England, Book

1, chapter 16.

predicated not just upon their ability to remain off poor relief,

141

but on their ability to keep

the child free from “circumstances exposing him or her to lead an idle or dissolute life.”

142

The legal treatment of wrongs to children was consonant not just with the larger

family law reforms that saw women and children emerging as more distinct legal persons,

but the introduction of the Prevention and Punishment of Wrongs to Children Act was

also consonant with Poor Law reforms at the time. In particular, children of the poor were

increasingly positioned as the deserving poor on which philanthropic activity should be

focused and parents who failed to provide for these children were deemed to be the source

of the problem.

143

While family law reforms that took place for economically self-sufficient

families arguably improved the formal legal position of women in the family – although,

as some have argued, from conservative and protectionist impulse

144

– the legal position

of women in poverty was not improved by these family law reforms aimed at the poor.

Women in poverty, like women in propertied families, still had to navigate largely

unchecked patriarchy in the home,

145

a social, economic and political system which

prevented them from earning money in either the mainstream marketplace, or in

141

The intersection of the laws of poor relief and apprenticeships at the time provided that the

children of families on poor relief lost the ability to direct the care and custody of their children and

instead, the overseers of the poor would apprentice out the children. Of Masters, Apprentices and

Servants, SNS 1858, c 125.

142

Prevention and Punishment of Wrongs to Children Act, s 3.

143

Patricia T Rooke and RL Schnell, Discarding the Asylum: From Child Rescue to the Welfare

State in English Canada (1800-1950) (Lanham, MD: University Press of America, 1983); Andrew

Jones and Leonard Rutman, In the Children’s Aid: J.J. Kelso and Child Welfare in Ontario

(Toronto: University of Toronto Press, 1981).

144

Philip Girard & Rebecca Veinott, “Married Women’s Property Law in Nova Scotia: 1850-1910”

in Janet Guildford and Suzanne Morton eds, Separate Spheres: Women’s Worlds in the 19th

Century Maritimes (Fredericton: Acadiensis Press, 1994).

145

See for example, Reva B Siegel, “’The Rule of Love’: Wife Beating as Prerogative and Privacy”

(1996) 105 Yale LJ 2117.

“immoral” jobs such as prostitution,

146

and now, women in poverty risked legally-

sanctioned intrusions from philanthropists such as the child savers who could remove

their children from the home indefinitely.

While the historical record shows that women did advocate for themselves and

were able to use the interventions of philanthropists such as the Society to empower

themselves and their children in certain ways,

147

this era exemplifies the precarious

position of women in poverty at the intersection of legalized public/private divide. Greater

liberalization of the family resulted in the institution of a more defined private sphere for

families in poverty, setting out due process rights

148

and legislated wrongs that would

justify depriving the parent of care and custody of the child.

149

At the same time, however,

the private rights affirmed the content of private – as opposed to public – responsibilities.

The family was the proper place for the support and proper socialization of children. But

the family – and more specifically, the mother – who could not support the child financially

and in accordance with a moralized notions of proper child caring at the time, was also

positioned legally, as well as socially, as the source of the problem. For women in poverty

without access to superior courts to protect rights to custody of their children, and indeed,

without the wages and property to facilitate their own private support, this era of family

law reforms was less an era of legal rights than of legalized responsibilities.

146

Judith Fingard, The Dark Side of Life in Victorian Halifax (Porters Lake: Pottersfield Press,

1989) at 95.

147

Ibid at 171.

148

Adoption Act, SNS 1893, c 9, s 2 and 3 provided that the child of a single mother, and

importantly, an unwed mother could not be adopted without the mother’s consent unless certain

conditions were met. A discussion in provided below.

149

Prevention and Punishment of Wrongs to Children Act, s 3.

The Legal Regime of the Victorian Family

The Victorian family, with its emphasis on the male as the head of the household,

as sole breadwinner and sole legal and political person, was very much a product of the

workings – and conspicuous absence in some areas – of the common law. The Victorian

family was premised upon ideas of marital unity with a woman immediately losing her

right to legal personhood upon marriage. Pursuant to the common law doctrine of

coverture, when a woman married a man her right to hold, acquire and dispose of property

in her own name was lost.

150

The doctrine of marital unity held that at law, a husband and

wife are seen as one person. As explained by the jurist Sir William Blackstone in his

Commentaries on the Laws of England: “the very being or legal existence of the woman is

suspended during marriage, or at least is incorporated and consolidated into that of the

husband; under whose wing, protection and cover, she performs everything.”

151

The consequences of coverture were far reaching for married women: a married

woman could not hold, acquire or dispose of property in her own name, nor could she keep

her own wages, acquire or satisfy debts, or enter into contracts on her own unless they

were to acquire goods and services for the household. This meant that women were unable

to work for wages outside the home without their husbands’ consent, nor were they able

to conduct business in their own name.

152

Married women were not able to bring legal

proceedings in their own name and conversely were not able to be sued in contract or tort

in their own name, but had to be joined with their husbands.

153

Furthermore, women were

150

Lilias M Toward, Development of Matrimonial Property Law in England and Nova Scotia: An

Historic Perspective (Halifax: Law Reform Advisory Commission, 1975) at 3.

151

Commentaries on the Laws of England, Book 1, chapter 15.

152

Toward, supra note 150 at 3.

153

See Married Women’s Property Act, 1884.

not able to have a domicile that was different from their husbands. Therefore, if a man left

the province and his wife refused to leave with him, her refusal to leave would constitute

legal desertion.

154

The common law also provided that the father was the sole guardian of the

children, with all legal authority over those children.

155

Blackstone wrote that the father’s

power over the child was “sufficient to keep [the child] in order and obedience” whereas

the mother did not have power over the children, but rather was entitled only to their

“reverence and respect.”

156

The father of the legitimate child was given virtually absolute

custody of the child, save for the rare case where the courts of equity would intervene to

correct a father who failed to sufficiently support or educate the child “in a manner

forbidden by the laws of the state.”

157

So absolute was the father’s rights to his children as

against the mother’s that the father could, in his will, appoint a guardian of the child other

than the mother, and his wishes would be upheld by the courts against her protests.

158

The

law provided that the legitimate father of the child was the man married to the woman who

bore the child. As one writer explains, while this might not accurately represent the

biological reality of fatherhood, “the law has historically been more committed to

154

Philip Girard & Rebecca Veinott, supra note 144 at 72.

155

See for example, De Manneville v De Manneville, (1804) 10 Ves 52; R v Greenhill, (1836 4 A &

E 624.

156

Constance Backhouse, “Shifting Patterns in Nineteenth Century Canadian Custody Law” in

David H Flaherty, ed, Essays in the History of Canadian Law (Toronto: Osgoode Society, 1981) 212

at 215.

157

Ibid, 215-16.

158

Rebecca Veinott, “Child Custody and Divorce: A Nova Scotia Study, 1866 to 1910” in P Girard

and J Phillips, eds, Essays in the History of Canadian Law (Toronto: University of Toronto Press

2011) 273 at 275.

protecting the traditional patriarchal family than to accurately representing biological

fact.”

159

During his lifetime, the father was the absolute sole economic head of the

household. Not only did coverture provide that the wife could not hold property in her own

right but the father’s dominion over the household extended to the right to take the

property of his children. As one Nova Scotia historian has explained:

In both the rural and urban preindustrial economies children were crucial to

household production, and during the transition to industrialism their wages were

important to the maintenance of the family. The father exercised absolute control

over the children and their earning power; he was entitled to the earnings of his

children, and he was empowered to bind them out as apprentices.

160

The legal relationship between father and children was predicated largely, although

not exclusively, on the notion of property. The father owed his children obligations of

maintenance, protection and education.

161

The obligation of protection as described by

Blackstone did not necessarily entail that the child should be protected from the father –

although extreme cruelty at equity could abrogate the father’s guardianship of the child

162

– but rather that the father protect the child from others. Blackstone wrote, “A parent may

also justify an assault and battery [and even homicide itself, in the necessary] defense of

the persons of his children.”

163

With respect to the laws of maintenance, fathers were

obliged to maintain their infant and “impotent” children.

164

However, the father’s duty of

159

Fiona Kelly, “Producing Paternity: The Role of Legal Fatherhood in Maintaining the Traditional

Family” (2009) 21.2 Can J of Women and the L 315 at 316.

160

Veinott, supra note 158 at 275.

161

Blackstone, Commentaries, Book 1, chapter 16.

162

Ibid.

163

Ibid.

164

Ibid.

education to the child was also significant and was described by Blackstone as being of the

“greatest importance of any.” In his Commentaries he explains:

[I]t is not easy to imagine or allow, that a parent has conferred any considerable

benefit upon his child, by bringing him into the world; if he afterwards entirely

neglects his culture and education, and suffers him to grow up like a mere beast, to

lead a life useless to others, and shameful to himself. Yet the municipal laws of most

countries seem to be defective in this point, by not constraining the parent to

bestow a proper education upon his children. Perhaps they thought it punishment

enough to leave the parent, who neglects the instruction of his family, to labor

under those griefs and inconveniences, which his family, so uninstructed, will be

sure to bring on him. Our laws, though their defects in this particular cannot be

denied, have in one instance made a wise provision for breeding up the rising

generation; since the poor and laborious part of the community, when past the

stage of nurture, are taken out of the hands of their parents, by the statutes for

apprenticing poor children, and are placed out by the public in such a manner, as

may render their abilities, in their several stations, of the greatest advantage to the

commonwealth. The rich indeed are left at their own option, whether they will

breed up their children to be ornaments or disgraces to their family.

165

The father’s right of guardianship over the child at common law, then, conferred

on him not only private obligations as between him and his children, but obligations to

society to ensure that they did not become “useless”. As Blackstone notes, however, aside

from the provisions of the Poor Law providing for the apprenticeship of poor children,

there was no statutory duty to do so or statutory means of abrogating the father’s right to

guardianship of his legitimate child in order to enforce this obligation.

In return for these duties owed to children, the father was given the right to his

child’s labour and profits from the child’s estate until the child turned 21 and the child was

obliged to obey his father.

166

The property relationship, therefore, was very much at the

center of Victorian family law.

167

Phillip Girard and Rebecca Veinott remind us, however,

that the common law patriarchal family also had positive effects for the financial position

165

Blackstone, Commentaries, Book 1, chapter 16.

166

Of Masters, Apprentices and Servants, SNS 1858, c 125.

167

Constance Backhouse, “Child Custody” in Petticoats and Prejudice: Women and Law in

Nineteenth-Century Canada (Toronto: Women’s Press, 1991) at 201.

of women. While men retained all economic authority outside the family, they also had

responsibilities within the family, in the form of dower, for example, or the obligation to

provide for necessaries for the family.

168

The common law family was conceived of not just

as the right of the family, but as an economic unit which provided for all of its members.

169

It is when it failed to provide economically for its members – for example, in cases of

desertion and the failure to provide necessaries – that the courts would step in and remedy

the situation.

170

A review of the laws of domestic relations from the statutes of Nova Scotia in the

mid-19th century reveals a concern only for the solemnization of marriage and the

guardianship and apprenticeship of children and servants. The whole of domestic relations

legislation in mid-19th century Nova Scotia was comprised of the following Acts: Of

Marriage and the Solemnization Thereof,

171

Of the Registry of Births, Marriages, and

Deaths,

172

Of Guardians and Wards,

173

and Of Masters, Apprentices and Servants.

174

The laws of custody and apprenticeship were largely concerned with a father’s right

to dispose of the custody of his child and to appoint a guardian, or with the father’s right

to apprentice his child. The mother was only entitled to bind her child as apprentice where

the father of the legitimated child was either dead or incompetent.

175

Included under the

168

Girard & Veinott, supra note 144 at 69.

169

Ibid.

170

If, for example, the mother could be shown to be without blame, ie., not to have herself deserted

the husband by taking a different domicile, or committed adultery.

171

SNS 1858, c 122.

172

SNS 1858, c 123

173

SNS 1858, c 124.

174

SNS 1858, c 125.

175

Ibid, s 2.

laws of domestic relations in the law Of Masters, Apprentices and Servants were

provisions not only for parents or guardians to bind their children to apprenticeship but

also to lodge complaints against their children’s masters, and conversely, for the masters

to lay complaints against their servants or apprentices. Therefore, the sphere of domestic

relations was very much a sphere concerned largely with property and maintenance. Other

than allowing for the common law rules as to coverture and custody, legislated

interventions into the private sphere of the family were concerned only with setting out

the rules for solemnization of marriage and with the guardianship and apprenticeship of

children and servants. Not only the common law, but Nova Scotia’s legislation, provided

for a largely unregulated sphere of husbandly and paternal authority in the private sphere

of the family. Neither the state nor judiciary intervened to curtail this patriarchal authority

in any meaningful way as long as the father was adhering to narrow obligations to

maintain, protect and educate his dependents.

176

This sphere of non-intervention into the patriarchal Victorian family meant a

patriarchal privacy and rule over the family as far as the state was concerned.

177

Men were

absolutely entitled to their wives’ sexual fidelity, and indeed, records from the mid-18th

century reveal that most often men would receive judicial divorces on the grounds of their

176

Backhouse, “Child Custody”, supra note 167 at 201:

Theoretically there were some limits on a father’s rights to his children. For centuries judges

had the authority under rules of equity to seize custody from a father where he had behaved

so outrageously that a child’s security was endangered. But the extreme caution with which

most courts exercised this power had left paternal custody rights almost unchallenged. As

one Manitoba justice, Thomas Wardlaw Taylor, noted in 1893, “the Court is always

unwilling to interfere with the common law rights of the father.”

177

Girard and Veinott argue for example, that “We must not forget the considerable influence of

wide networks of kinship, community and religion in encouraging socially responsible behaviour.

Twentieth-century conceptions of the family as a primary zone of privacy must be set aside when

we turn to the largely rural society of 19th century Nova Scotia.” See Girard & Veinott, supra note

144 at 69.

wives’ adultery.

178

Furthermore, men were entitled to dispose of their wives’ and children’s

bodies to the point of physical endangerment.

179

Physical, sexual and psychological

violence were rarely considered sufficient legal ground for state intervention into the

private sphere of the patriarchal family. Chastisement or the use of force to socialize

children and women to obedience in the household was thought of as a necessary part of

bringing up children and a part of the father’s duty of education.

180

Cruelty, such as that

that would justify violating paternal authority over the family, required that “the victim

suffer physical illness or mental distress such as seriously to impair bodily health or to

endanger life.”

181

Even where violence reached a level where it would be considered cruelty,

especially in middle class families, this was not something to be addressed criminally by

the police.

182

Despite the social blindness towards cruelty, women would seek legal redress for

cruelty within the family in the form of divorce. However, while Nova Scotia was the first

province to institute judicial divorce in legislation as early as 1758

183

– even before divorce

178

Kimberly Smith Maynard, “Divorce in Nova Scotia, 1750-1890” in P Girard and J Phillips eds,

Essays in the History of Canadian Law (Toronto: University of Toronto Press 2011) 232 at 253.

179

James G Snell, “Marital Cruelty: Women and the Nova Scotia Divorce Court, 1900-1939” (1988)

XVIII.1 Acadiensis 3.

180

Ibid.

181

Ibid at 8; Maynard, supra note 178 at 253.

182

Judith Fingard “The Prevention of Cruelty, Marriage Breakdown and the Rights of Wives in Nova

Scotia 1880 – 1900” XXII.2 (1993) Acadiensis 84 at 87.

183

Constance Backhouse, “Pure Patriarchy: Nineteenth-Century Canadian Marriage” (1985-1986)

McGill LJ 264 at 267. An Act Concerning Marriage, and Divorce, and for Punishing Incest and

Adultery, and Declaring Polygamy to be a Felony, SNS 32 Geo 2 (1758), c 17.

became legal in England

184

– and while cruelty became a ground for divorce in 1761,

185

was strictly construed. As Kimberley Smith Maynard points out in her study of divorce in

Nova Scotia between 1750 and 1890, an “extreme degree of physical violence [was]

required to establish cruelty in the eyes of the law.”

186

An 1873 divorce case reproduced by

Maynard indicates the degree of cruelty that was required even into the late-19th century

to constitute cruelty:

The legislature never could have intended that the relationship of husband and

wife…should be severed, unless for causes of the gravest character; and where the

intervention of this Court is invoked on the ground of cruelty of a husband, it is

bound…to have it clearly established here that the cruelty complained of has been

so aggravated as to render it impossible that the Duties of the married life could be

discharged, and the complaining party must make it appear not only that she has

not brought her troubles on herself by provocation or other misconduct, but that

she has exhausted all means in her power by her conciliatory conduct to render a

more kindly feeling in her husband toward her…It is the duty of the court to keep

the rule extremely strict.

187

Maynard notes that in her study of marital cruelty between the mid-18th to the mid-

19th century she found: “a general judicial insensitivity to domestic violence, and a

tendency on the judge’s part to respond to factors other than violence itself” such as

intemperance and failure to support.

188

She indicates that such an insensitivity was

evidence in the criminal law, as well, and that of seventeen husbands brought before the

stipendiary magistrate in Halifax in the 1860s for threats, only two were fined.

189

Men

184

Ibid at 273. An Act to Amend the Law Relating to Divorce and Matrimonial Causes in England,

1857 (UK), 20 & 21 Vict, c 85.

185

An Act for the Amendment of an Act, Entitled an Act Concerning Marriages and Divorce, and

for Punishing Incest and Adultery, and Declaring Polygamy to be a Felony, SNS 1 Geo3 (1761), c

186

Maynard, supra note 178 at 250.

187

Ibid at 252.

188

Ibid at 250.

189

Ibid.

accused of cruelty could argue successfully that their wives had provoked them and this

would serve as a defense.

190

The consequences of the father and husband retaining almost absolute authority

over the common law family meant not only that problems within the family were private

problems, subject to his discretion, but conversely, that without the father there was no

private sphere of the family. The unmarried, or otherwise single mother and child were not

sufficient legal personalities to demand legal autonomy as a family and the single mother

could was not accorded full rights to custody of the child without court order. The common

law provided that the child born to an unwed mother was an “illegitimate,” and a child of

nobody: filius nullius. Blackstone wrote of the illegitimate child: “the incapacity of a

bastard consists principally in this, that he cannot be heir to any one, neither can he have

heirs, but of his own body.”

191

Furthermore, the social and economic reality of the time

would have meant that unwed and other single mothers would in many cases have been

unable or would have experienced great financial difficulty attempting to support a child

on their own.

192

190

Ibid.

191

Blackstone, Commentaries, Book 1, chapter 16; Lori Chambers, “Newborn Adoption: Birth

Mothers, Genetic Fathers, and Reproductive Autonomy” (Fall 2010) 26.2 Can J of Fam L 339 at

347-48.

192

Suzanne Morton, “Women on Their Own: Single Mothers in Working Class Halifax in the 1920s”

(Spring 1992) 21 Acadiensis 90 at 91:

The death or departure of a spouse affected men and women alike, regardless of class, but

had a particularly devastating economic and emotional impact on working-class women.

Society defined the ideal family as a male-headed household supported by a male wage, but

families led by women that did not fit this model constituted a significant proportion of

households. Most women-led households were headed by widows, but women who were

deserted, separated or married to migrant workers also composed important groups of

those left temporarily or permanently in charge. Women who found themselves temporary

or permanent heads of households were economically and socially vulnerable.

The social stigma against single motherhood alone, would have made single-

motherhood a difficult proposition for many women in 19th century Nova Scotia.

193

Furthermore, the unwed and otherwise single mother had de facto responsibility for the

child.

194

Pursuant to the common law, rights of care and custody of the legitimate child

belonged to the father. Single mothers without orders for custody would have had tenuous

legal rights to the care and custody of their children. Furthermore, before the passage of

adoption legislation in Nova Scotia in 1896, the consent of the unwed mother was not

required in order for a third person to seek guardianship of the child. The single mother

and her illegitimate child especially were accorded no inviolable space of family privacy

without a male head. Indeed, the other name by which the illegitimate child was known at

law was filius populi: child of the people – the child of the public, as opposed to private

sphere of the family.

195

The fact that mother-headed families were accorded no family autonomy under law

was also significant to the obligations of the putative father of the illegitimate child. While

the common law provided in the intact family that a father owed his children maintenance,

protection and education, nowhere did legislation set out these responsibilities. The father

of an illegitimate child, however, was obliged by the state and by the Maintenance of

Bastard Children Act

196

– a subset of poor relief legislation – to maintain the bastard child.

Nova Scotia’s Maintenance of Bastard Children Act of the mid-19th century provided that

any single woman who became pregnant with a child that was likely to become chargeable

193

See, for example, Linda Gordon, “Single Mothers and Child Neglect, 1880-1920” (1985) 37 Am

Quart 173.

194

Chambers, supra note 191 at 347.

195

Ibid.

196

SNS 1851, c 91.

– that is, to become a financial charge upon the township where the mother resided - must

lay an information before a county judge to swear to the identity of the putative father of

the child before the birth of the child.

197

The father would then be brought before a judge

and made to swear a bond with surety to indemnify the township for maintenance of the

child. The overseers of the poor could then, after the birth of the child, bring an application

to have both parents brought before the court and have the father indemnify the township

against the costs of maintenance for the child and the cost of the birth of the child.

198

this time, the father could argue that he was not the father of the child, and, if, despite his

protests he is found by the county judge to be the father of the child, the Act provided for

methods of appeal from the orders of filiation.

199

It is important to note that the Maintenance of Bastards Act worked as part of the

overall legislation of poor relief in the province. While the mother could bring the initial

application for maintenance, she was essentially an inconsequential party, relevant only to

the extent that she could identify the putative father. The real interested parties were the

father and the township upon which the child and the mother were chargeable. Nova

Scotia’s Poor Law

200

of mid-19th century was a reception of the Elizabethan Poor Law

which had been in operation in England since 1601.

201

Nova Scotia’s Poor Law divided the

province into “poor districts” in which the ratepayers of each district were taxed in order

to provide for the poor. Each “pauper” or person in poverty who could not maintain

themselves, was determined to have a “settlement” in any one poor district. Rules of

197

Ibid, s 1.

198

Ibid, ss 2-3.

199

Ibid, ss 7-8.

200

Of the Settlement and Support of the Poor, SNS 1851, c 89.

201

43 Eliz 1, c 2.

settlement were based upon where the person was born or where they had lived for a

significant period of time.

202

Overseers of the poor in each poor district would collect dues

from rate payers and maintain the paupers of the district. Paupers who did not have

settlement in a particular poor district who applied for relief could be removed back to the

poor district where they had settlement.

203

The Maintenance of Bastard Children Act then,

was key for reimbursing each poor district for the illegitimate children it was obliged by

the Poor Law to maintain.

It was not only unwed -mother-headed families, however, that came within the

purview of the Poor Law of mid-19th century Nova Scotian society. Any married father who

could not keep the family off poor relief would not be able to take full advantage of his

usual paternal rights pursuant to the common law, or domestic relations legislation of the

time. For example, as described in the quote by Blackstone above, the father on poor relief

lost this right to bind the minor child into apprenticeship and his entitlement to the wages

of the child

204

and this right became that of the overseers of the poor. Section 6 of the Poor

Law provided:

The overseers of the poor may bind as apprentices or servants, the minor children

of any poor person, who has become chargeable to the district, as having a lawful

settlement therein, or who is supported there in whole or in part at the charge of

the district; and also all minor children, who are themselves chargeable to the

district as having a lawful settlement therein, or as poor persons supported by the

district.

202

Of the Settlement and Support of the Poor, s 3: Every poor person who is a native of a township

or hath served an apprenticeship therein, or hath lived as an hired servant one whole year therein

under an agreement to serve the same master one whole year then next before the application for

relief, or hath executed a public annual office therein, or hath been assessed and hath paid his share

of poor and county rates in the township during one year at one time, shall be entitled to a

settlement, and such township shall be obliged to maintain him.

203

Ibid, s 4.

204

Of Masters, Apprentices and Servants, SNS 1858, c 125, s 1 and 5.

Further, it was the responsibility of the overseers of the poor to inquire into the treatment

of these children by their masters, not the family.

205

So closely associated was the Victorian family with property and maintenance, that

while propertied families were accorded by law a sphere of family privacy – in the form of

almost unfettered patriarchal power – the single-mother-headed and other poor families

were ascribed no such privacy under the common law or laws of Nova Scotia in the mid-

19th century. The laws regulating the poor family were very much a product of the Poor

Law, whether they be single-mother-headed families or not. The courts and police would

not intervene in the private sphere of the father-headed family unless his brutality was so

overwhelming to require public condemnation.

206

However, the patriarchal discretion of

the family on poor relief was limited by the powers of the overseers of the poor who would

determine how much money the family would take in, where the family would live, and

what was to become of the children of these families. In other words, where the propertied

family was the private family, the un-propertied family or the mother-headed family could

be understood as the public family – the family for whom the ratepayers of a poor district,

or in other words, the “people” and the people’s fiscal and social concerns, were the

ultimate authority.

Proliferation of Domestic Relations Legislation in Late 19th Century Nova Scotia

These regimes of private and public domestic relations continued in Nova Scotia

until the end of the 19th century when private “domestic relations” legislation and public

welfare legislation went through substantial reform in response to a changing social,

205

Ibid, s 10.

206

Backhouse, “Child Custody”, supra note 167 at 201.

economic and political landscape. Economic growth spurred on by rapid industrialization

in North America meant that by the 1880s, Canada’s cities were beginning to experience

an era of relative wealth, which also contributed to the growing interest in social reform.

207

The creation of the Canadian Confederation in 1867, introduction of the National Policy in

1879 (ie., tariff protection for Canadian manufacturers), and completion of the

Intercolonial Railway in 1876, ushered in an era of economic stimulation in Canada, as

well as a growing acceptance of governmental intervention in the economy.

208

Unlike the

rest of Canada, however, out-migration became a significant feature of the Maritimes

towards the end of the 19th century.

209

While the Maritime provinces had experienced prosperity and population growth

during the first half of the 19th century, the second half of the century saw high levels of

outmigration, urbanization, and economic decline as a result of rapid industrialization

210

and recession.

211

A drastic change in the traditional “wood, wind and sail economy” caused

by the Industrial Revolution was contributing to a persistent stagnant economic growth at

207

Dennis Guest, The Emergence of Social Security in Canada, 2nd ed (Vancouver: University of

British Columbia Press, 1985) at 19.

208

Girard & Veinott, supra note 144 at 81.

209

Patricia Thornton, “The Problem of Out-Migration from Atlantic Canada, 1871-1921: A New

Look” (1985) 15 Acadiensis 3 at 10.

210

Ibid.

211

See David Sutherland, “Halifax 1815-1914: Colony to Colony” (1975) 1 Urban History Review 7 at

8-9. Sutherland explains:

The general international recession which set in during the early 1870s dealt Halifax a

severe blow. Assessed property values, for example, had declined [from $19.8 million in

1874] to $14.5 million by 1881. Contraction of the tax base, combined with problems in

collecting back taxes, almost bankrupted the city administration which, during prosperity,

had increased its debt burden from circa $95,000 in 1857 to $1.2 million in 1872. The

citizenry averted municipal financial collapse through reorganization and retrenchment

but they had less success in generating long-term economic recovery. Recession turned into

chronic stagnation.

the end of the century.

212

It is estimated that between the years 1861-1901, between

239,000 and 264,000 individuals emigrated from the Maritimes - mostly either to other

provinces in Canada or to the United States.

213

As the overall population of the Maritimes

in 1901 was only 893,953, this out-migration was substantial, indicating the level of

economic insecurity at the time, as well as itself having significant effects on the economy,

on society and on the family.

214

The change in the economy from the age of “wood, wind and sail” to an

industrialized one of “iron, coal and rail” was more keenly felt in the rural areas of Nova

Scotia that had been dependant on lumbering, shipping, shipbuilding and fishing. By the

1880s, rural areas of Nova Scotia were experiencing significant levels of population

decline, from -0.031 in Victoria to a population decline of -10.78% in Antigonish over a

decade. By contrast, some thirty years before, these same areas had seen 10% population

growth rates.

215

Urban centres or mining and steel areas such as Halifax, Cumberland and

Cape Breton, were better able to adapt to the new economy and were able to stave off the

worst of the out-migration, some of its increasing population coming from the province’s

own rural areas. In the 1890s, for example, Cape Breton saw a population increase of

43.58% due to its steel industry, while Cumberland and Halifax managed to see population

growth maintain at just above 4.5%. Even this small level of population growth, however,

was significant, as in Nova Scotia’s rural areas by the very end of the 19th century,

population decline was all but ubiquitous.

216

212

Alan Brookes, “Out-Migration from the Maritime Provinces, 1860-1900” (1976) 5 Acadiensis 26

at 28.

213

Ibid at 29.

214

Ibid.

215

Thornton, supra note 209 at 32.

216

Ibid.

Outmigration and economic stagnation meant that the problems of “desertion” and

“intemperance” were becoming more visible as children and wives were left in vulnerable

economic positions. The existence of the common law doctrine of coverture meant that

women left by their husbands without means of support were placed in an extremely

vulnerable situation as the law provided them no ability to conduct business in their own

name or to dispose of property to support themselves. In the most egregious cases, even

where a woman was able to support herself and her children, the doctrine of coverture

dictated that a deserting husband could return and take the wages that the wife had earned

in his absence.

The problem of desertion and the failure to provide maintenance for wives had long

been a problem in Nova Scotia. As Backhouse has explained:

In these [Maritime] provinces, the lure of travel combined with the perils of the sea

to breed marital instability. Indeed, marriage breakdown seems to have been a

concern of some magnitude in the Maritime Provinces, for they had also been the

first to introduce legislation opening access to divorce.

217

As mentioned above, Nova Scotia was the first province to institute judicial divorce

legislation, as early as 1758 – even before divorce became legal in England. The original

act providing for divorce allowed divorce on the grounds of impotence, kinship within

prohibited degrees (ie., incest), adultery and wilful desertion while withholding necessary

maintenance for a period of three years.

218

In 1761, the Act was amended in order to bring

the legislation in line with the English counterpart. The new grounds for divorce were

impotence, pre-contract and kinship within prohibited degrees, adultery and now,

cruelty.

219

Case law from the mid-19th century reveals that the ground of cruelty was

217

Constance Backhouse, “Married Women’s Property Law in Nineteenth-Century Canada” (Fall

1988) 6.2 L and History R 211 at 217.

218

An Act Concerning Marriage and Divorce and for Finding Incest and Adultery and Declaring

Polygamy a Felony, SNS 32, Geo 2 (1758).

219

Backhouse, “Pure Patriarchy”, supra note 183 at 268.

construed as a man having deserted his wife and failed to provide her maintenance.

220

Despite the availability of divorce, however, this was insufficient in the face of coverture to

provide a modicum of economic protection for deserted wives. As Philip Girard points out,

early married women’s property bills introduced in the mid-19th century were introduced

in an effort to protect women from alcoholic and deserting husbands.

221

Paternal

responsibility within the family regulated by common law was no longer such a reliable

source of support for the Victorian family regulated by common law.

The first Nova Scotian married women’s property act was enacted in 1866.

222

The

Act provided that where a married woman was deserted by her husband “without

reasonable cause” and she was supporting herself, she could make an application to

Supreme Court for an order providing for the protection of the property and earnings she

acquired to support herself after her husband’s desertion.

223

An order of protection had to

be entered with the Registrar of Deeds. A woman’s property would thereafter be protected

from both her husband and his creditors and, if her husband or his creditors wrongfully

detained her property, she could apply to court for restoration of the property plus a

penalty worth double its value.

Furthermore, the 1866 Act provided that after the granting of an order of

protection the wife would be deemed during her desertion to be in the same position with

regard to “property and contracts and suing and being sued” as if she had been granted a

220

Maynard, supra note 178 at 237.

221

Girard & Veinott, supra note 144.

222

An Act for the Protection of Married Women in Certain Cases, SNS 1866, c 33.

223

Ibid, s 2.

divorce.

224

The Act provided that a husband or his creditors could apply for a discharge of

an order of protection for cause. While the legislation provided for separation of property,

it did so only in very limited, emergency circumstances and only on application – not as of

right. The necessity of a woman having to apply to Supreme Court for an order of

protection meant that it was not readily available to the poor and middle class women it

was meant to protect. Between 1866 and 1884 only six women applied for an order of

protection.

225

It is significant to note, however, that for the most part these women were

supporting themselves financially, whether by taking in boarders, keeping a “house of

entertainment” or running a school for girls.

226

In 1884, Nova Scotia’s Legislative Assembly introduced another piece of married

women’s property legislation – the Married Women’s Property Act, 1884 – which

expanded upon the separate property rights provided to deserted married women in an

1866 Act.

227

This new act was modeled upon a similar act in Ontario and provided for a

married woman to be able, as of right, to hold and enjoy her property “as if she continued

sole and unmarried” regardless of whether or not she had been deserted by her husband.

It can therefore be understood as a more liberally-minded act than the 1866 Act.

228

woman’s property would be hers to hold and dispose of free from her husband and any

obligations that he might have to creditors. The Act provided that a woman could insure

her life, or with his consent, the life of her husband, that she could keep a separate bank

accounts and that she had the right to make a will.

224

Ibid, s 5.

225

Girard & Veinott, supra note 154 at 76.

226

Ibid.

227

Of the Property of Married Women, RSNS 1884 (5th Ser) c 94; Girard & Veinott, ibid at 75-76.

228

But not if she committed adultery: see section 3.

However, a husband was still entitled to the earnings of his wife and children unless

the husband had given his consent or the wife had obtained an order of protection

disentitling him.

229

Nor could a woman carry on business on her own without an order or

the consent of her husband. As well, a married woman could not be involved in a legal

proceeding without being joined by her husband unless he was absent from the province.

Therefore, while the 1884 legislation provided for greater separation as to property, it did

not do away with all aspects of the common law doctrines of coverture and marital unity

especially as they applied to women’s ability to engage in paid work and conduct business

without the consent of her husband. Furthermore, the Act provided that a woman would

be wholly disentitled from the rights contained in the Act if it was found that she had

committed adultery.

230

The common law doctrines of coverture and marital unity were

finally overridden by legislation in Nova Scotia with the Married Women’s Property Act

of 1898.

Phillip Girard and Rebecca Veinott have argued that the 1866 Act emerged from a

protectionist impulse – defending “virtuous deserted women from exploitative creditors

and husbands.” Nevertheless, they argue that,

the idea that the state had a right and a duty to intervene to protect the economic

interests of the weaker party within the family sphere represented a significant

break with traditional notions of male authority within the family. The act of 1866

began to redefine the state’s role as active intervener in the spousal relationship

rather than passive conservator of marital right.

231

Girard and Veinott write that the main impetus behind this protectionist attitude

lay in the temperance ideas of the time which saw public and state sympathy for wives left

destitute by alcoholic husbands. The writers note that similar sentiments were behind the

229

Section 37.

230

Section 3.

231

Girard & Veinott, supra note 144 at 77.

1884 legislation – that is a philosophy that “favoured a maternal/protectionist rather than

a liberal approach to married women’s property”.

232

However, the Act was more liberal

than its 1866 forebear. It provided women with liberal rights to contract and hold property

as distinct legal individuals as opposed to the largely protectionist property rights accorded

in the 1866 Act. Girard and Veinott speculate that the liberal attitude behind the act came

from the “nascent female suffrage movement in the province.”

233

Interestingly, they write

that during the 1884 session of the Legislature the Bill to Allow Unmarried Women and

Widows to Vote at Municipal Elections and Elections for School Trustees Act was also

debated.

234

In the end, Girard and Veinott argue that the introduction of the 1884 Act

marked a compromise between liberal and conservative elements. While the Act had many

liberal aspects providing for women to hold property, be responsible for debts and

contract, it was not until the 1898 Act that they would see their rights to keep their wages

and carry out business in their own names provided for.

235

Married women’s property acts were followed by greater state intervention into the

common law family with custody and adoption legislation

236

which altered the common

law principle that fathers were automatically entitled to custody of their children.

Providing for married women’s custody of children began with the 1866 amendments to

the legislation providing for the Court for Divorce about the same time as early women’s

property legislation.

237

Interestingly, these same 1866 amendments also provided for a

232

Ibid.

233

Ibid at 82.

234

Ibid.

235

Ibid at 84.

236

Adoption Act, SNS 1896, c 9.

237

SNS 1866, c 13, s 9-10.

secured amount of annual alimony to be provided to women, indicating the protective

nature of these amendments as far as the financial position of women and their children

were concerned. However, while the 1866 amendments to the Court of Divorce Act

provided for alimony, child maintenance and custody, the first reported case in Nova

Scotia to actually see a woman awarded these by the court was not decided until 1882. The

case, Rachel Amelia Reid v. William Reid saw the mother awarded custody of her two

children, permanent alimony of $150 per year and child support of $100 per year until the

children reached 21 years.

238

It was not until the end of the 19th century that a woman could bring an application

for custody of her child independent of an application for divorce begun in the Court of

Divorce.

239

The passage of An Act Respecting the Custody of Infants in 1893 provided that

a mother of a child could apply to the court for access or custody of the child.

240

Furthermore, the Act provided that the court may also make an order for maintenance of

the child by the father.

241

It must be noted, however, that the Act merely supplemented the

common law with regard to custody of the child. A father was still entitled to de facto

custody of his legitimate child, whereas the mother of a legitimate child was entitled to

238

Veinott, supra note 158 at 279.

239

In 1903 the legislature passed the Alimony Act, SNS 1903, c 64. The Act was comprised of one

provision that stated:

1. The supreme court and any judge thereof shall have jurisdiction to grant alimony to any

wife who would be entitled by the law of England, or to any wife who would be entitled by the

law of England to a divorce and to alimony as incident thereto, or to any wife whose husband

lives separate from her without any sufficient cause and under circumstances which would

entitle her by the law of England to a decree for restitution of conjugal rights; and alimony

when granted shall continue until the further order of the court.

In 1904 the Act was amended by SNS 1904, c 35, s 1, providing that alimony was available to “any

wife who is entitled to live apart from her husband by reason of his cruelty.”

240

SNS 1893, c 11, s 1.

241

Ibid, s 3.

now apply for custody and would only be provided custody of the child by court order.

Importantly, the Act enshrined the principle that the welfare of the child was the

paramount consideration in making a private custody award: Section 2 of the Act

provided:

In making such an [access or custody] order the court or judge shall have regard to

the welfare of such infant or infants, and to the conduct or circumstances of the

parents, and to the wishes as well of the mother as of the father.

While domestic relations legislation was passed which began to construct the wife

as a distinct legal individual, capable of contracting, holding property, and of having legal

custody of her child, it is important that the state for the first time came to intervene to

displace paternal custody of the child on the basis of a consideration of the child’s welfare.

Before this time, the father was wholly entitled to decide on the child’s welfare except in

the most egregious cases as long as it could be said that the father was not adequately

maintaining or protecting the child.

242

Constance Backhouse, for example, writes on the

significance of this state intervention in the family:

In part this new focus on the welfare of the child was a direct result of equalizing

trends of mothers’ and fathers’ rights to custody. As maternal rights increased,

paternal claims correspondingly diminished. A balancing was required to

determine which parent deserved custody. As this balancing occurred, focus was

necessarily directed to the welfare of the infant. The obvious extension of this

reasoning was to award custody to the state or a charitable institution when the

interests of the child so required. It may have been easier for courts to begin to

intrude on parental rights when racial and class factors were operating. In any

event this was a trend which would grow in the twentieth century.

243

Therefore, along with the rise of women’s rights within the propertied family, we

see the rise of state intervention in the form of judicial scrutiny and legislative regulation

into the sphere of the family. When a mother brought an application for judicial

intervention, her rights to the child simultaneously came under scrutiny. She was not

242

Backhouse, supra note 156 at 215.

243

Ibid at 241.

entitled to an order for custody if she had been found to have committed adultery

244

and

likewise, if her fitness to have custody of the child was found wanting.

245

Introduction of the welfare of the child principle in private custody cases opened

up scrutiny of child custody by the courts as never before. Nonetheless, even though these

Acts meant greater judicial and indeed, state intervention into the family, and scrutiny of

a mother’s fitness to take custody of her child, they also marked an advance in women’s

rights in mere decades. This increase in rights for women was consonant with other social

and political movements in Nova Scotia at the time, including suffrage rights,

246

the

aforementioned separate property rights and rights to contract, as well as greater

participation of women in civil society in general. It must be noted, however, that, as

feminist historians such as Backhouse have shown, while women won these hard earned

rights at the legislatures, judges were often resistant to enforcing these new rights.

247

But as Girard and Veinott point out there were also conservative currents in the

province – such as the temperance and religious movements – which provided for state

intervention into the family on the basis of protectionist, rather than liberal equality ideals.

Feminist historians have written that even though the era saw progressive rights for

244

Custody of Infants Act, SNS 1893, c 11, s 4.

245

Ibid.

246

In Nova Scotia, unmarried and widowed women were given the right to vote first in 1887.

247

Constance Backhouse, “Pure Patriarchy”, supra note 183 at 291:

The judiciary, however, was far less inclined to endorse the egalitarian model of matrimony:

nineteenth-century Canadian judges persistently favoured fathers in child custody

decisions, despite successive statutes which sought to equalize parental rights over

children. They were agonizingly slow to recognize the importance of a woman's role in

child-rearing and they deliberately minimized the impact of legislation which diminished

male authority over children. In a parallel vein, they promoted a hierarchical model of

marriage in virtually every aspect of judicial decision-making. Their judgments in cases

involving criminal conversation, alimony and wife-battering reveal, with few exceptions, an

unhesitating advocacy of patriarchal marriage.

women, in many ways the reasoning behind the provision of greater rights to women was

based upon a conservative “separate spheres” ideology.

248

For example, women were

accorded custody of very young children in greater numbers under late-century child

custody legislation in part because according to the separate spheres ideology women were

held as the “natural” protectors of the home. In speaking to the Halifax YMCA in 1856,

Reverand Robert Sedgewick summed up the mother’s inherent capacity for caregiving in

these religious terms:

What is [the influence of] a mother? It is this relationship that [women’s] power

for good is specially manifest, and specially blissful…It is not too bold a use of the

figure to say that [a child] is in her hands as clay in the hands of the potter, that she

can mould it at will. The power she can exert for a considerable period is well nigh

absolute…The love of a mother is like the bounty of God…

249

This early “maternalist” ideology saw the welfare of the child as best provided for

by women, particularly where the children were young (under the age of 7).

250

The “tender

years doctrine” was part of an overall ideology that saw a need to keep women and child in

a purified, innocent sphere of the home, and to keep them from the vulgarities of the

marketplace.

251

. This separate spheres ideology was not confined to Nova Scotia but was

fairly ubiquitous throughout Canada and the United States. As historian Ann Vandepol

tells us of the U.S. situation:

As historians of the 19th century United States have pointed out, the celebrated “cult

of true womanhood” divided humanity into socially distinct spheres of male and

female, with women allotted the “natural” capacity to nurture, provide emotional

care, and hence to parent. Because the parent-child relationship was reformulated

248

Janet Guildford and Suzanne Morton eds, “Introduction”, Separate Spheres: Women’s Worlds

in the 19th Century Maritimes (Fredericton: Acadiensis Press, 1994) at 5.

249

Backhouse, “Child Custody”, supra note 167 at 202.

250

Separate Spheres, supra note 248 at 6.

251

Backhouse, “Child Custody,” supra note 167 at 202. Backhouse argues that the Ontario 1887

Custody Act (as amended) which was very similar to the Custody Act introduced in Nova Scotia in

1893 was introduced in order to “nudge the judges into less pronounced preferences for paternal

custody.”

as essentially affective and emotionally based, parenting became increasingly

identified as an exclusively female responsibility. [citations omitted]

252

Therefore, despite the increase in women’s rights at the time, some have argued

that the main concern with the proliferation of domestic legislation was the welfare of

children, first and foremost rather than promoting the independence of women. As

Backhouse explains:

In reality, however, it seems likely that it was the newly emerging concept of

childhood and adolescence that improved women’s custody rights. The basic and

dominant impulse seemed to be not justice to women but the need to recognize and

protect children and to prepare them for their forthcoming role in industrial

society.

253

Besides these new Acts providing for married women’s property rights and custody

of children, the end of the 19th century in Nova Scotia saw a proliferation of domestic

relations reform. The intensely private, patriarchal common law family, in the span of

several decades, became subject to a growing regime of legal regulation. Domestic relations

legislation in Nova Scotia in the mid-19th century was comprised only of the Acts of

Marriage and the Solemnization Thereof,

254

Of the Registry of Births, Marriages, and

Deaths,

255

Of Guardians and Wards, and Of Masters, Apprentices and Servants. By the

end of the century, a complex sphere of domestic relations begins to emerge which altered

and extended the common law. In the revised statutes of 1900 the following Acts were

listed under the “Domestic Relations” Title:

Of the Solemnization of Marriage;

Of the Property of Married Women;

Of Conveyances of Real Property by Married Women;

Of Dower;

252

Ann Vandepol, “Dependent Children, Child Custody, and the Mothers’ Pensions: The

Transformation of State-Family Relations in the Early 20th Century” (Feb 1982) 29.3 Social

Problems 221 at 227.

253

Backhouse, “Shifting Patterns”, supra note 156 at 213.

254

SNS 1858, c 122.

255

SNS 1858, c 123.

Of Guardians and Wards;

Of the Prevention and Punishment of Wrongs to Children;

Of Apprenticeships;

Of the Transfer of Immigrant and Orphaned Children;

Of the Prevention of the Use of Tobacco and Opium by Minors;

Of the Maintenance and Reform of Juvenile Offenders;

Of the Custody of Infants;

Of the Adoption of Children;

Of the Licensing of Boarding houses for Infants Under Twelve Years of Age;

Of the Closing of Shops and the Hours of Labour therein for Children and Young

Persons;

Of the Custody and Estates of Lunatics;

Of the Guardianship and Care of Inebriates.

256

All of these acts were either introduced or reformed between 1893 and 1900 – an

incredible proliferation of “domestic relations” legislation in a mere 7 years. A comparison

of this list of new domestic relations legislation with the list of domestic relations

legislation from mid-century reveals several obvious facts. First, besides laws relating to

lunatics and inebriates – themselves also legal incompetents – most of this legislation was

centered on the legal category of the child. And second, unlike domestic relations

legislation in the mid-19th century Nova Scotia, married women appear as distinct legal

personalities. What this tells us at first glance is that, as wives and children become distinct

legal entities – their lives and relationships now regulated by law – the state actively

intervened in and characterized as legal problems issues that had once been under the

purview of the father in the patriarchal common law family. However, what may be less

clear at first glance is the classed nature of these reforms.

As I will discuss in the next section, a bulk of this new domestic legislation was

focused on addressing a number of emerging social and economic problems that largely

only touched on the lives of the poor. Cruelty to children, the transfer of immigrant and

orphaned children, use of tobacco and opium by minors, regulation of juvenile offenders

and adoption, the licensing of boarding houses, and the closing of shops and hours of

256

Title XVII “Of Domestic Relations”, RSNS 1900, c 111 to c 126.

labour were, unlike the married women’s property legislation and custody legislation, Acts

that targeted mostly children and families in poverty. Furthermore, these new domestic

relations acts targeted problems that used to be addressed using criminal, vagrancy and

poor laws. Now, these problems: children’s labour, crime, and drug use, for example, were

regulated by law under the rubric of “domestic relations”. In the next section I will detail

how this new regime of domestic relations regulating the activity of children in poverty

was consonant with social reform work taking place in Halifax at the time, as well as

changing notions on providing relief to the poor.

Philanthropy, the New Child and the New Poor Law

Nova Scotia’s poor law of the mid-18th century – first enacted in 1763 – was a

reception of the Elizabethan Poor Law

257

, which like its predecessor, saw responsibility for

the poor administered by small townships or municipalities.

258

The law divided the

province into “poor districts” in which the ratepayers of each district were taxed in order

to provide for the poor and the poor relieved under the Poor Law were known as

“paupers”.

259

In 1770, an amendment established that the poor for which the district was

responsible, had to have “settlement” there.

260

Rules of settlement were based upon where

the person was born or where they had lived for a significant period of time. Paupers who

did not have settlement in a particular poor district who applied for relief could be removed

back to the poor district where they had settlement.

261

These laws of settlement were

257

43 Eliz 1, c 2.

258

Guest, The Emergence of Social Security supra note 207 at 11.

259

Senior Scribes, supra note 135 at 15-17.

260

Fitzner, supra note 138 at 7.

261

Ibid.

important for preventing the movement of paupers from rural to urban areas.

Furthermore, the Poor Law provided that it was the responsibility of “the fathers, grand-

fathers, mothers, grand-mothers, children and grandchildren of paupers” to look after the

poor and if they failed to do so, then they would have to reimburse the township at a rate

of 5 s per week.

262

Therefore, relief for the poor was thought to be primarily the

responsibility of families - the state would only step in when they could not do so.

Furthermore, poor relief also provided that where a man has left his wife and children the

overseers could seize his goods and his land and receive his rents.

263

Poor relief in the counties and the system of poor relief in Halifax were quite

different. In the counties, poor relief was administered largely by outdoor relief, that is,

the poor were more often maintained in their own homes than in asylums, although these

did exist in the counties. Furthermore, the poor were often maintained as well as by the

informal assistance of family, church and community.

264

Up until 1879 there were even

reports of the sale of paupers at auction.

265

The process of “bidding off” a pauper has been

explained in the following:

For many years it was customary for certain ratepayers to “bid off” one or more poor

men, women or children for stipulated sums to be paid weekly by the town. In these

cases, where it was possible, the ratepayers made the poor whom they bidded off,

useful in their homes; for such service and for the sum they received, giving the

unfortunates board, lodging and clothes. Many persons also, who became town

charges were “farmed out” to men who made their living wholly or in part by

boarding them. In 1815, the sum raised in Cornwallis for keeping the poor was two

hundred and forty pounds.

266

262

The Poor, SNS 1758, Title 72, no 12.

263

Ibid, no 13.

264

Senior Scribes, supra note 135 at

265

Ibid at 17.

266

Ibid.

While in the counties the poor were provided for by this system of settlement and

“outdoor relief”, by contrast, poor relief under the Poor Law in Halifax was provided only

by way of “indoor relief”.

267

This meant that if a person or family applied for poor relief in

Halifax, they would have to take up residence, and often work, in the Poor House, or if

eligible, in a specialized asylum. Furthermore, transients who had no settlement in the

counties – including the large number of immigrants who flooded into Halifax from the

mid-18th century – were supported at the expense of the Provincial government, in the

city’s institutions.

268

In 1759 a workhouse was built in Halifax in order to house the city’s poor as well as

the city’s criminal population.

269

The house was established so as to put the able-bodied

poor and the criminal to work and to reimburse the city ratepayers and the province for

the money paid to support them

270

as well as to serve as a house of correction.

271

Nova

Scotia was the first jurisdiction in what would become the Confederation of Canada to pass

vagrancy legislation. In 1759, a vagrancy law was passed, which authorized justices of the

peace to commit disorderly persons, vagabonds, and persons of lewd behaviour to a house

of correction in Halifax.

272

The Act provided justices of the peace could “commit

drunkards, persons of lewd behaviour, vagabonds, runaways, stubborn servants and

267

Fitzner, supra note 260 at 20. Although as Fingard notes, the Association for Improving the

Conditions of the Poor, and the St. Vincent de Paul in Halifax did provide some private outdoor

relief with “friendly visiting” for a time. Fingard, Victorian Halifax, supra note 146 at 153.

268

Fitzner, ibid at 8.

269

Ibid at 3.

270

Ibid at 9.

271

An Act for regulating and maintaining a House of Correction or Work-House within the Town

of Halifax, SNS 1759, c 1.

272

Ibid, s 2.

children, and persons who notoriously misspend their time to the neglect and prejudice of

their own or their family’s support.”

273

In 1763 part of the workhouse was set aside as a

Poor House to house the non-able-bodied.

274

In 1767 the workhouse was closed due to

inefficiency, but the Poor House section remained open.

275

In 1785, the Poor House took

over the orphans from the Province’s orphan homes.

276

In 1750 a Hospital had also been opened by the colonial government to house the

sick – largely soldiers. However, several decades later the hospital closed and was turned

into an almshouse.

277

By the end of the 18th century then, the Poor House and the

almshouse were the two major sources of poor relief in Halifax besides the several religious

or ethnic based organizations listed above. This relief proved unable to handle the masses

of impoverished that flooded into the city from the counties and from overseas. At the end

of the century another workhouse or “House of Correction” was built in Halifax on the spot

where the Poor House stood. The House of Correction contained cells and mandated that

all the able-bodied work, in an attempt to generate profits to alleviate the financial strain

of providing for the poor, but also to discourage “idleness”.

278

Besides a growing influx of

the poor in the city, one writer has speculated that racist motivations were behind the

rebuilding of the workhouse. At this time a number of maroons had arrived from

273

Ibid.

274

Fitzner, supra note 260 at 20.

275

Ibid at 19. Ibid at 19. Fitzner writes that it is likely the workhouse was reopened due to the arrival

of Maroons, Black immigrants from Jamaica. The racism in Nova Scotia at the end of the 18th

century towards the Maroons and indeed all persons of colour living in the Province were intense –

depictions of the “negro” as “poor blacks” and as “indigents” were pervasive.

276

Ibid at 13.

277

Ibid at 19.

278

Ibid.

Jamaica.

279

Racist attitudes saw the confining of black immigrants in need as more easily

justifying the opening of another workhouse which would not only provide relief – but

would also provide punitive measures for insubordination and “idleness”.

Jim Phillips has written about how vagrancy laws became an important means of

maintaining order amongst Halifax’s poor in the 18th and 19th century and discouraging

“idleness”. Vagrancy laws regulated the “vagrant as a status offender, one who threatened

social order by living in a socially unacceptable though not otherwise illegal manner, or by

appearing likely to commit other crimes.”

280

In 1851 with the first revision of Nova Scotia’s

statutes, the 1759 vagrancy legislation was replaced with an act dealing with “madmen and

vagrants” which provided:

Persons who unlawfully return to any place whence they have been legally removed

as paupers, and idle and wandering persons having no visible means of subsistence,

and persons going about to beg alms, shall severally be deemed common vagrants,

and may be brought up and summarily convicted by a justice of the peace, and

thereupon imprisoned for not more than one month.

281

Persons found to run afoul of vagrancy laws would be sentenced to a prison term or

fined. It is unlikely that a person in poverty in mid-19th century Halifax could have afforded

to pay the fine and so levels of incarceration for vagrancy were high. Phillips indicates that

rates of “recidivism”, or the repeat institutionalization of some persons, reveals not only

the focus of vagrancy laws on the poor and unemployed, but the difficulty of breaking this

cycle of poverty.

282

Furthermore, if an inmate could not show that they could be financially

self-sufficient if released, then they would be sent to another asylum for the poor on

279

Ibid.

280

Jim Phillips, “Poverty, Unemployment, and the Administration of Criminal Law: Vagrancy Laws

in Halifax, 1864-1890” in Philip Girard and Jim Phillips, eds, Essays in the History of Canadian

Law, Vol 3 (Toronto: Osgoode Society, 1990) at 129.

281

Ibid; RSNS 1851, c 104.

282

Ibid at 141.

release. Phillips reports that “[o]n at least 126 occasions during these years the old, the

young, the sick, and the indigent were variously dispatched to the poor house, the hospital,

reformatories, or the industrial school very shortly after committal.”

283

Phillips reports

that a total of 5.6% of committals between the years 1864 to 1890 were children. He writes

that “the practice of sending children to reformatories was commonplace, and drew

applause from city officials.”

284

The mid- 19th century also saw an increasing concern t0 distinguish between the

able-bodied poor able to work and earn for the poor house, and the infirm.

285

In England,

1834 saw the introduction of the Poor Law Amendment which sought to end the provision

of outdoor relief to paupers and introduced only indoor relief – that is, the provision of

relief only to those who lived in the Poor House or workhouse – by mandating the building

of workhouses. The amendment was introduced in the belief that outdoor relief

“demoralizes the poorer classes and pauperises them.”

286

This concept of “pauperism”

283

Ibid at 139.

284

Ibid. Vagrancy was constructed not only to regulate the lower classes of Halifax, but to maintain

the operations of denominational and racial subjugation in the city, as well. While only 40% of the

city was Catholic, Catholics made up 60% of the incarcerated. Furthermore, while racialized Nova

Scotians made up only 3% of Halifax residents they made up 11% of those imprisoned. Finally,

vagrancy laws were also used to institute a certain sexual regulation in the city. Between 1864 and

1890, “men offended the vagrancy laws more often than women did, although only marginally so –

52.6 to 47.4 per cent. Women were mostly incarcerated for the crime of prostitution under vagrancy

laws in Halifax. Interestingly, 47.4% incarceration rates for vagrancy were high for women when

compared to statistics out of Massachusetts and England. In those jurisdictions, incarceration rates

for men were 75% and 85% respectively. Phillips indicates that a possible explanation was “the

substantial prostitute population” in Halifax at the time. Women could obtain a release from prison

by agreeing to go into domestic service. Finally, the rate of imprisonment for vagrancy did lose some

of its force by the 1890s, perhaps because of the work social reform movements, the instituting of

anti-cruelty laws and the focus on intemperance. By the late 1890s the rates of imprisonment for

vagrancy were low (15 women and ten men) while incarceration rates for “drunks” and “others” was

relatively consistent. Ibid at 136-137.

285

Senior Scribes, supra note 135 at 25.

286

See Charles R Drysdale, The Population Question According to TR Malthus and JS Mill: Giving

the Malthusian Theory of Overpopulation (London: G Standring, 1892), online: Internet Archive,

<https://archive.org/details/populationquest00drysgoog>.

became an important means of describing and working with the poor. Pauperism became

synonymous with the condition of “dependency” and “degeneracy” that lead the able-

bodied poor to become paupers on poor relief.

287

Thomas Malthus and his followers, who

had a great influence on amendments to the Poor Law in Britain, and promoted the idea

that charity promoted idleness among the able bodied paupers and promoted

“dependency”.

288

In order to prevent dependency, an unappealing system of poor relief

289

as well as a

system which policed and addressed the criminal and immoral behaviour of the poor, was

needed.

290

In Halifax, for example, there were voluntary charitable societies in the early

years in Halifax such as the Poor Man’s Friend Society,

291

which did not discriminate on

the basis of deservedness in the provision of the relief to the poor. However, it has been

speculated that the use of Malthusian thought by some opponents of the poor law lead the

Society to eventually provide relief only to the non-able bodied and then shut down its

work in 1827.

292

Hostility against the able-bodied and a suspicion of their pauperist nature

287

It is important to note that “pauperism” as an explanatory framework is distinguishable from

“poverty”. Pauperism was understood as a condition of the poor degenerating into antisocial

behaviour and posing a danger to society through vagrancy, immoral behaviour and crime.

Giovanna Procacci, “Social Economy and the Government of Poverty,” in Graham Burchell, Colin

Gordon and Peter Miller, eds, The Foucault Effect: Studies in Governmentality, (Chicago:

University of Chicago Press, 1991) at 159.

288

Fitzner, supra note 260 at 29.

289

See for example, Nadja Durbach, “Roast Beef, the New Poor Law, and the British Nation, 1834-

63” (2013) 52 J of Brit Stud 963 at 965.

290

Phillips, supra note 280.

291

Ibid at 39. The society was established in 1820. It provided soup, wood, and some employment

for all poor regardless of whether or not they were “able-bodied” or “infirm”.

292

George E Hart, “The Halifax Poor Man’s Friend Society, 1820-27: An Early Social Experiment”

34 Can Hist Rev (1953) 109 at 120.

and fear of “dependency” provided that the only suitable support for these men and women

was to provide them with work, no matter how meager or demeaning.

293

While the “able-bodied” poor were stigmatized as “idle”, “dissolute” and “dependent”

on the one hand, on the other hand, public sentiment was growing in favour of the non-

able-bodied poor and dependent. For instance, since its founding, children, the elderly, the

disabled, and able-bodied men and women were all kept together in the Poor House.

294

the middle of the century, however, there was greater concern for dividing and categorizing

the Poor House inhabitants by sex, age, and infirmity. Increasing attention was paid to the

deplorable conditions that the Poor House provided for children, the disabled and the

elderly who were not able to work.

295

The mid-19th century also saw the emergence of a number of voluntary agencies and

religious societies who focused their work specifically on providing for these deserving

poor: the Sisters of Charity (Home of the Guardian Angel, Saint Joseph Orphanage), Saint

Vincent de Paul Society, Halifax Visiting Dispensary, Protestant Orphanage, Victoria Hall

(Home for Women), Halifax Association for the Improvement of the Poor, Halifax Infants’

Home and the Society For the Prevention of the Cruelty. These charitable societies all

developed in the three decades between 1849 and 1877 and would prove to have a

significant effect on the way that that relief would be administered to the poor at the end

of the 19th century in Halifax. Indeed, these charitable organizations and the

philanthropists that formed their ranks would have a significant effect on how the problem

293

Ibid.

294

Rooke and Schnell, Discarding the Asylum, supra note 143.

295

Cheryl Lee Des Roches, A Place to Call Home: A Comparison of the Development of State

Funded Institutional Care for the Indigent Aged in Nineteenth Century Nova Scotia and Ontario

(Queen’s University Thesis, 2008) at 87.

of poverty, and the poor themselves, would come to be constructed in society at that

time.

296

Specialized institutions for the deserving poor, as opposed to just the Poor House or

workhouse to house all the poor, began to be viewed as the preferred modern and scientific

way to provide for the deserving poor.

297

Government expenditure on the poor reflected

this categorization of and specialized attention upon the deserving poor. In 1858 the

Mount Hope Hospital for the Insane was erected in Dartmouth and in 1859, the Province

built the City Hospital and then the Victoria General in 1865.

298

The Halifax Industrial

School was built in 1865 and the Halifax Infants Home, and the Grove for inebriates were

built in 1875.

299

Large, modern institutions were the way in which the state exhibited its

modern, progressive investment in the deserving poor.

300

An increasing focus on

institutionalization also corresponded with an increased role of the state and provincial

government funding – first, the colonial and then the Provincial government post

Confederation.

301

Hospitals, jails and institutions for the insane required the support of

government expenditure.

However, even these government expenditures and the municipal system of

settlements under the Poor Law were inadequate to provide relief for the poor, especially

in the city of Halifax which tended to receive both immigrants from abroad, Nova Scotians

296

Senior Scribes, supra note 266 at 36.

297

Rooke and Schnell, Discarding the Asylum, supra note 143 at 48.

298

Des Roches Thesis, supra note 295 at 96.

299

Fingard, Victorian Halifax, supra note 146 at 122.

300

Des Roches Thesis, supra note 295 at 96.

301

Cheryl DesRoches, “For them but Never Really Theirs: Finding a Place for the ‘Aged’ within

State-Funded Institutions in Nineteenth-Century Nova Scotia” (2009) 20.1 J of the Can Hist

Assoc 57 at 60.

from other parts of the province and the “transient” poor, who had no other settlement

under the Poor Law.

302

Of all the Maritime provinces the processes of urbanization that

had been spurred on by changes to the “wood, wind and sail” economy” were most

pronounced in Nova Scotia. Figures from this time show that while the province was 92%

rural in 1861, this percentage decreased to 72% in 1901, with the proportion of the

population living in urban centers rising to 28%.

303

This increase of 20% of the population

from rural to urban centers means that from 1861 to 1901, one in five people who had been

living in rural Nova Scotia moved to a city. In 1871, an article in the newspaper, the Acadian

Reporter, complained about the tendency “of the sons and daughters of farmers to make

escape...[and] to flock into towns here” as well as to crowd into small hotels in Halifax.

304

From 1871 to 1921 estimates show that the population of the city of Halifax doubled from

29,582 to 58,372 people.

305

But as Judith Fingard has pointed out, the changes that were brought on by the

transition in the economy, such as industrialization and urbanization, were not the only

changes to affect the lives of the poor in Halifax between the 1860s to the 1890s.

306

Fingard

points to four other major influences on the lives of the poor in late-19th century Halifax:

military use of the “upper streets”

307

and importantly, a triad of civic reformers, moral

crusaders, including the temperance crusaders, and the activity of the churches, exerted a

302

Fitzner, supra note 138 at 7-8.

303

Brookes, supra note 56 at 33.

304

Ibid.

305

LD McCann, “Staples and the New Industrialism in the Growth of Post-Confederation Halifax”

(1989) XIX.1 Acadiensis at 52.

306

Fingard, Victorian Halifax, supra note 146 at 21.

307

Streets up the hill from the Halifax Harbour, for example, what is today known as Market

Street, where a great deal of the poor in the city would live.

100

great deal of influence on reform of Halifax’s underclass at the end of the century.

308

The

activity of last two of these forces – the moral crusaders and the churches, particularly the

city mission – was especially intertwined and would come to have important effects on the

lives of the poor in the city. Both moral crusaders and the churches advanced the

temperance cause and by 1885 there were 21 temperance societies in the Halifax-

Dartmouth area.

309

The Halifax City Mission, for example, had been undertaking friendly

visiting to the homes of the poor since its creation in 1852. As Fingard notes, “Their

frequent visitations to the houses of the poor and outcast gave them ample opportunity to

identify sickness, sloth, violence, crime and immorality, all of which they blamed on the

misuse of alcohol.”

310

The mission, however, like other charitable organizations at the time

also focused on “illiteracy, prostitution, juvenile delinquency and family squalor,

prominent features of underclass life.”

311

But it was not just members of the religious orders that were prominent in the

social reform movements that would come to have such an important effect on the

regulation of the poor in Halifax at this time. Fingard has provided us with a sketch of who

filled the ranks of the philanthropy movement in Victorian Halifax:

In Halifax, as in England and America, volunteers and paid agents concerned with

prevention, rescue and salvation represented a broad cross-section of society from

the gentry class to the working class. Among the former was Isabella Binney

Cogswell, a wealthy spinster who was prominent in most Protestant charitable

ventures involving women and children until her death in 1875. In the middle ranks

were many of the city’s clergymen, businessmen and professionals and their wives,

sisters and daughters who donated ideas, money and volunteer time. At the lower

end of the social scale were the actual city missionaries and agents, usually laymen,

who came to the work in their middle age after experience as small businessmen,

artisans or soldiers. The activist lay women were usually the wives or widows of

308

Fingard, Victorian Halifax, ibid at 21-28.

309

Ibid at 27.

310

Ibid at 119.

311

Ibid.

101

such men. Among the trained religious who devoted their efforts to the city’s social

problems were Catholic nuns and Salvation Army officers, people drawn normally

from the lower classes. Many of the patrons, volunteers, paid agents and trained

workers were British immigrants whose appreciation of social problems had been

honed in the old country; a few had American experience. All of them were stalwart

supporters of the temperance cause.

312

Women’s activity in this philanthropic movement in Halifax was significant and

helped to shape the focus of social reform.

313

In Halifax, women’s organizations such as the

Women’s Christian Association and the Women’s Christian Temperance Union also

organized around the issue of temperance, holding that “Drink…is the great evil.”

314

The

reform movement in Halifax was heavily influenced by the churches and in particular, by

the divisions between the Protestant and Catholic churches. As Fingard has reported,

almost 40% of the city was Catholic at this time. Furthermore, a majority of the

“underclass” with whom these philanthropists were concerned were also Catholic.

315

Not only was this reform movement divided by denominations but by race. As

Morton points out, participation by African-Nova Scotian women in the private

philanthropy movement developed somewhat later than that of their white counterparts,

in part because white women’s participation in the private philanthropy movement was

largely in an auxiliary role to men’s leadership in the areas. In the African Nova-Scotian

churches, by contrast, women were at the center of financial and spiritual leadership.

Morton has documented proceedings from the African Baptist assembly at which

prominent female reformers spoke of the Christian woman’s duty in controlling alcoholism

312

Fingard, Victorian Halifax, supra note 146 at 117-118.

313

For a discussion see Ted Rutland, “’Where the Little Life Unfolds: Women’s Citizenship, Moral

Regulation and the Production of Scale in Early Twentieth-Century Halifax, Nova Scotia” (2013) 42

J of Hist Geo 167.

314

Ibid at 140.

315

Ibid at 27-28.

102

and staving off the sinful behavior.

316

Like the white churches, African-Nova Scotian

churches were much taken up with the temperance cause in late-19th century Nova Scotia,

however, women’s philanthropic work in the name of temperance didn’t develop into a

more fulsome engagement until the early 20th century.

317

The white middle class female reformers of the mid-to –late 19th century in Halifax

were concerned not just with temperance, however, but the moral reform of a certain

“criminal class” in the city at the time.

318

For example, Fingard has detailed the concern of

the Local Council of Women at the end of the century with prostitution and closing houses

of “ill-repute”.

319

Reformers at the time adhered to pauperist notions of the deserving poor,

but had a particular moralized outlook on poor women as vagrants. The sexuality of

impoverished women, their unwed pregnancy and their prostitution, held a particular

threat to the maternalist ideology advanced by many female reformers at the time. Racist

notions of “inferiority” can also not be divorced from these ideas. As Fingard details, not

only were working class wives, and girls from the counties found among the ranks of

prostitutes in Halifax at that time, but African Nova Scotian women, being amongst the

poorest members of Haligonian society at the time, could be found in these houses of ill-

repute.

320

While African Nova Scotians comprised only 3% of the population of Halifax, by

316

Ibid at 80.

317

Suzanne Morton, “Separate Spheres in a Separate World: African-Nova Scotian Women in late-

19th-Century Halifax County (1993) XXII.2 Acadiensis 61 at 82.

318

Fingard, Victorian Halifax, supra note 146 at 95.

319

Ibid.

320

Ibid.

103

the mid-to-late 19th century African Nova Scotian women comprised 40% of jailed

prostitutes.

321

Not only were middle class women focused on prostitution, but their status as

natural caregivers gave them a special authority in working with the children of the city’s

poor. Early maternalist ideology that vaunted the position of women as mothers,

developed in tandem with the project of child saving in philanthropic activity of the time,

as mothers took an important place as guardians of this childhood.

322

Both religious

conservative and progressive women’s movements drew upon this emphasis on childhood

and innocence to promote women’s positions within the home and consequently, within

society.

323

Mothers became important partners in ensuring the proper upbringing of

children and their proper socialization as upstanding citizens.

324

The interrelationship

between the women’s movement, social reform (including temperance and work with

children) has been described by historian Robert McIntosh in the following:

Organizations such as the National Council of Women of Canada, which was founded

in 1893, sponsored efforts to improve children’s health through well-baby clinics,

children’s playgrounds, anti-smoking campaigns and the promotion of domestic

science. Women’s Institutes had a strong interest in child welfare issues as well. The

Woman’s Christian Temperance Union, which was formed to fight alcohol

consumption, enrolled children in special organizations on the basis of the “triple

pledge” to forswear liquor, tobacco and bad language. Its goals came to include

further regulation of children’s leisure: scrutinizing their literature, demanding

curfews and advocating stiffer children’s protection legislation.

325

321

Ibid.

322

Gordon, “Family Violence, Feminism and Social Control”, supra note 43 at 470. Rutland,

supra note 313.

323

Ibid.

324

Vandepol, supra note 252 at 227.

325

Robert McIntosh, “Constructing the Child: New Approaches to the History of Childhood in

Canada” (1999) 28.2 Acadiensis 126 at 129.

104

In Halifax, the Protestant Infant’s Home and the Home of the Guardian Angel were

opened in 1875 and 1886, respectively, in order to assist working women to care for their

children.

326

The focus of the home was to provide a safe place for working women – even

unwed mothers – to place their children during the day.

327

But reform work on behalf of

children was not always so supportive of both parent and child. Both a fear of crime and

delinquency amongst the lower classes

328

and a desire to remove children from situations

of impoverishment and destitution resulted in a campaign for poor children to be removed

from their parents and either removed to the country or to one of the city’s institutions.

329

The Halifax Industrial School, for example, was opened with the participation of the

Protestant city mission in 1863 as a facility that would remove the children from “injurious

associations and have time and opportunity for improvement in all that is calculated to

make them useful members of society.”

330

Children were employed there in paper-bag-

making, shoemaking, boot-blacking and errand-running.

331

The Catholic Church was also

involved in the creation of industrial schools, with the Saint Patrick’s Home for boys in

1885 and the Good Shepherd Industrial Refuge in 1890.

332

As there was yet no legislation

allowing for the missions to carry out this type of work, the removal of children happened

in a legal grey area. There is some indication that parental consent was given to the

326

Fingard, Victorian Halifax, supra note 146 at 124.

327

Ibid.

328

Rooke and Schnell, Discarding the Asylum, supra note 143 at 40.

329

Fingard, supra note 146 at 126.

330

Ibid at 126.

331

Ibid.

332

Fitzner, supra note 138 at 44.

105

removal, particularly at the urging of denominational personnel.

333

Legislation specifically

providing for judges to institutionalize these children without parental consent would

come with the introduction of the Prevention and Punishment of Wrongs to Children Act

in 1882.

A quick review of the bulk of new domestic relations legislation introduced by the

end of the 19th century in Nova Scotia confirms that the legislation was largely concerned

with children and their moral as well as physical safety: the rescue of children,

334

the

prevention of use of tobacco and opium,

335

the reform of juvenile offenders,

336

the transfer

of immigrant and orphaned children,

337

the licensing of boarding houses for children,

338

and the prevention of children from entering into and/or working in shops for certain

hours.

339

The concern with destitute children, orphans, juvenile delinquents, lunatics and

333

Fingard has detailed how the city mission also carried out child-saving of its own, which appears

largely to have been accomplished by obtaining the consent of parents:

A policy evolved in the 1870s of removing children from their city homes and sending them

for the rest of their childhood to foster homes in the country. By 1878 the missionary [Adam

Logan] reported that he had rescued forty-two destitute children from evil influences. In

1882 alone he obtained the consent of parent to find homes for twelve children in the

country, the object being “to rescue them from the evils of poverty and lives of future crime

and place them where they may become useful and valuable members of the community.”

The fact that Logan was able to persuade parents to give up their children suggests that he

was a key figure in his community. He might of course have suggested to reluctant parents

that this course was a better alternative than calling in the Society for the Prevention of

Cruelty to investigate family problems. [citations omitted]

Fingard, Victorian Halifax, supra note 146 at 130.

334

Prevention and Punishment of Wrongs to Children, SNS 1882, c 95.

335

Prevention of the Use of Tobacco and Opium by Minors, SNS 1892, c 50.

336

Maintenance and Reform of Juvenile Offenders, SNS 1890, c 23.

337

Of the Transfer of Immigrant and Orphan Children, RSNS 1900, c 118.

338

Of the Licensing of Boarding Houses for Infants Under Twelve Years of Age, SNS 1897, c 40.

339

Of the Closing of Shops and the Hours of Labour Therein for Children and Young Persons, SNS

1895, c 17.

106

inebriates also gives us a clue to the ways in which this new domestic legislation interacted

with the growing use of institutions within the province to care for these groups.

Legislation for children, lunatics and inebriates each provided for warrants for their

restraint, the appointment of guardians for their care, their removal to institutions if

within the city of Halifax, and provisions for determining their settlement in order to

establish which township was responsible for them financially.

340

This new system of classification and subsequent institutionalization required a

shift in outside intervention into the family and the way that law and society conceived of

the child. Whereas in the common law family the child was conceptualized as the property

of the father, the changing legal family at the end of the 19th century in Nova Scotia saw the

concept of “child” emerge as more than mere chattel and the legal role of the parent shift

closer to that of trustee. If we reflect back upon domestic legislation in the middle of the

19th century in Nova Scotia we see children’s legal personhood regulated in much the same

way as servants. According to the Act of Masters, Apprentices and Servants, a father could

bind his child as apprentice, subject only to his obligation to inquire into the treatment of

the child by the master.

341

Furthermore, pursuant to the common law, the father owed his

child obligations of maintenance, protection and education, and he could not totally

disentitle the child to property by the ancient laws of distribution. However, other than

these sometimes vague constraints, the regulation of the child and the child’s activity was

left very much to paternal purview. While Blackstone may have bemoaned the absence of

statutory authority to intervene in the family and enforce the father’s duty to “educate” his

child, the absence of such legislation was very much in accordance with maintaining the

private sphere of the common law family. The social promotion of childhood and the

340

See SNS 1882, c 50; The Custody and Estates of Lunatics, RSNS 1900, c 125, “The Lunacy Act”;

Of the Guardianship and Care of Inebriates, RSNS 1900, c 126.

341

SNS 1858, c 125, ss 1 and 10.

107

subsequent creation of the “child” as a distinct legal category, however, would have

significant effects for the way the common law family was regulated.

Philanthropic concern for the child precipitated the legal creation of a sphere of

childhood which kept children from work, in schools, and away from negative moral

influences.

342

The common law had provided that at the age of 7 a child would be subject

to same legal sanctions as an adult. Children of the labouring classes and urban poor were

made to work as soon as possible in order to contribute financially to the family. As one

historian explains:

Work was central to the lives of the great majority of children until well into the

20th century. Boys and girls contributed to the household to the extent that they

were able to do so, labouring on the farm, in the fishery or in the woods, as domestic

servants or as apprentices in crafts. As Canadian industries developed in the late

19th century, growing numbers of children worked for wages with unprecedented

regularity and intensity in the new mines, mills and factories, often far removed

from their parents. At the same time, other children roamed the streets of the major

urban centres, earning their living by shoe-shining, newspaper sales and other

street trades, by performing small services such as opening doors or offering

entertainment, or by begging, petty theft or prostitution.

343

In order to create a sphere of “childhood” free from the urbanizing, industrializing

influences of a burgeoning capitalist society, a space of childhood was created by domestic

legislation at the end of the 19th century: by preventing children from entering the

workforce too early,

344

preventing their presence in immoral places such as saloons and

places of entertainment,

345

preventing their use of alcohol, tobacco and opium

346

342

Rooke and Schnell, Discarding the Asylum, supra note 143 at 23; Anthony M Platt, The Child

Savers: The Invention of Delinquency (Chicago: University of Chicago Press, 1977) at 15.

343

McIntosh, supra note 325 at 126.

344

Closing of Shops and the Hours of Labor Therein for Children and Young Persons, SNS 1895, c

17.

345

Prevention and Punishment of Wrongs to Children, SNS 1882, c 95.

346

Prevention of the Use of Tobacco and Opium by Minors, SNS 1892, c 50.

108

providing for greater regulation of their sexual activity, and by compelling their attendance

at school. For example, in 1886 the criminal law was amended to create a felony offense of

sexual relations in a brothel with a girl under 12; this age was raised to 14 in 1890. In 1873

the Mines Act was introduced in Nova Scotia in order to keep children under 10 out of the

mines; the age was raised to 12 years of age in 1891.

347

And in 1901 the Factories Act

appeared in Nova Scotia, regulating the minimum age of employment and maximum hours

of work therein.

348

The end of the 19th century saw not just the creation of public institutions, but the

introduction of public schools and compulsory education. Compulsory education helped

to keep the potentially wayward children of the under classes off city streets and socialized

towards productive work. In 1892, compulsory education was introduced in Halifax.

349

Section 10 of the Act provided for penalties for parents or guardians who failed to compel

their child – between the ages of 8 and 14 – to attend school for 6 months out of the year.

Section 10 of the Act provided:

Every parent, guardian or other person having charge of any child in the city of

Halifax, failing to comply with [causing such child to attend some public or private

day school at least six months in each year], shall be liable on summary conviction

before the stipendiary magistrate, to a fine of not less than one or more than twenty

dollars and costs for the first offence, and for every second or subsequent offence

to a fine of one dollar and costs for each school day that the law is not complied

with, provided, however, that the same person shall not be fined more than sixty

dollars, exclusive of costs, in any one year.

The Act also introduced the legal concept of “truant” – that is, a child between the

ages of 8 and 14 who for 10 days or more, not necessarily consecutive, had not been

347

See Robert McIntosh, “The Boys in the Nova Scotian Coal Mines: 1873-1923” (1987) 16.2

Acadiensis 35 at 40.

348

SNS 1901, c 1.

349

An Act Respecting Compulsory Education in Halifax, SNS 1892, c 61.

109

attending school.

350

Any child who was suspected of being a “habitual truant” could be

brought before the stipendiary magistrate and committed to “such reformatory, industrial

school, home for children or orphan asylum in the city of Halifax” until the child reached

14 years of age.

351

The city was responsible for paying the expenses of the child, but the city

could also pursue the parents of the habitual truant to be reimbursed for these expenses.

The creation of the legal category of truant was an important step in the process of

regulating the lower classes. As Judith Fingard has written about public education in 19th

century Halifax, “education was seen as the means of making the population more

productive and society more consumer-oriented.”

352

With the concept of the habitual

truant, the judiciary, the state, religious societies and the private philanthropy movement

gained greater access to the children of the lower classes. For a family living in poverty in

19th century Halifax, it would be likely that a child between the ages of 8 to 14 years might

miss 10 days of school in the 6-month-long school year, as these children would have been

able to earn small wages to contribute to their families. Failing to prevent children from

becoming truants would mean these children could be removed to the relevant infant’s

home or industrial school.

Furthermore, the influence of philanthropic and religious societies on the legal and

social definitions of a “proper childhood” and proper maternal care ensured that there was

a specific moral content to these concepts. The concept of child and the legal regulation of

the activity and behaviour of the child was suffused with notions of a “proper” childhood.

350

Ibid, s 17.

351

Ibid, s 19.

352

Judith Fingard, “Attitudes Toward the Education of the Poor in Colonial Halifax” 2.2 (1973)

Acadiensis 15 at 42.

110

Educating the lower classes fulfilled the goals of not only maintaining order and industry,

but also instilling a certain moral uprightness. As one historian has explained,

By the end of the 19th century, however, concern for the promotion of moral and

ethical instruction began to intensify. As society became industrialized and

urbanized, traditional guarantors of morality and social stability – family, church,

and small community – saw their effectiveness in that role steadily eroded.

353

The notion of the proper Christian family included a particular gender order,

religious and moral ideology, ideologies of racial superiority, as well as a commitment to

the moral uplift of the poor. Reformers focused on intemperance and moral deficiency as

an explanatory framework for most social ills.

354

Saving children, then, meant saving them

from pauperism and the immoral character of their parents, which could lead them to an

idle and dissolute lifestyle. Poor parenting behaviour such as placing a child in immoral

situations, exposing the child to work too early, failing to send the child to school, or failing

to supervise a child so that the child smoked or procured opium, might now see the child

removed from the home and detained in an institution. The state and ratepayers would not

have to care for able-bodied parents but only for the deserving children within the family

and still maintain a modicum of correction on the family.

This legal regulation of the child allowed for an intervention in poor and working

class families by philanthropic societies, denominational institutions and personnel and

the police in ways that the old system of workhouses and poor relief would simply not have

accommodated. Poor House overseers had been little concerned as to the care for children

by parents living in the Poor House. Abandoned children or children caught committing

crimes had simply been subject to vagrancy laws, sent to jails or industrial schools. But

once the legal regulation of the poor left the confines of the Poor Law and the Poor House

353

Robert Nicholas Berard, “Moral Education in Nova Scotia, 1880-1920” 14.1 (1984) Acadiensis 49

at 49.

354

Fingard, Victorian Halifax, supra note 146 at 118-119.

111

and entered the domestic sphere – any domestic sphere – it opened up the family and

parental behaviour to the scrutiny of philanthropic societies and the criminal law regime

in the name of this new concept of the child.

The Prevention and Punishment of Wrongs to Children Act and the Society that

gave rise to the Act’s introduction – the Society for the Prevention of Cruelty, were

important pieces of regulating the family in the name of this reform movement. The Act

contained the hallmarks of the movement: concern for the deserving figure of the child,

regulation of a protectionist character, concern for the moral development of children as

much as their physical protection, and reliance upon criminal law enforcement,

institutionalization, and the interventions of philanthropic volunteers. Criminal law

intervention, however, was not focused on the child – childhood had been accorded a

sphere of innocence in Victorian discourse. Instead, by focusing on the guardianship

interests of families in poverty, the transgressive behaviour of children could be addressing

by criminalizing and punishing the actions of parents.

The Introduction of Canada’s First Child Protection Act

Canada’s first Society for the Prevention of Cruelty (against animals) came into

existence in 1877 against this historical backdrop in Halifax, as a product of the growing

private philanthropy movement. The Society was created by largely wealthy, Protestant

men who were highly influenced by social reform work that was being undertaken in

Britain at the time.

355

Society members were vocal proponents of the temperance

movement and included prominent members such as the Mayor of Halifax, judges and

355

Beverly MacDonald Dubinsky, Rescued: Early Child Protection Legislation in Nova Scotia

(MSW Thesis, Dalhousie University, Maritime School of Social Work, 1995) [unpublished] at 14.

112

businessmen in the city.

356

The Society was created by the Act to Incorporate the Nova

Scotia Society for the Prevention of Cruelty to Animals.

357

The Act granted Mayors – of

Halifax and elsewhere – as well as wardens, “custos rotulorum”

358

and stipendiary

magistrates the power to swear in special constables to enforce the Prevention of Cruelty

to Animals Act.

359

John Naylor was the first secretary-agent of the Society. A white British immigrant,

he came from a modest middle-class background and in his professional life outside of the

society he was at various times involved in real estate as well as being an employment

agent, contract carter, poultry farmer, census enumerator and chief liquor inspector.

360

Naylor was in charge of prosecuting cruelty to animal cases in Halifax under the Act.

361

However, soon after the creation of the Society, Naylor was asked to investigate and

intervene in cases of cruelty against women and children, even though the Society would

not have the official mandate to do so until 1882.

362

In 1879, Naylor wrote to the secretary

of the New York chapter of the Society for the Prevention of Cruelty and asked to see copies

of their legislation pertaining to children. He explained that similar legislation was being

contemplated by the Nova Scotia chapter of the Society.

363

The New York statute for the

356

Ibid.

357

SNS 1877, c 86. The Act lists the founding members of the Society as the following: MH Richey

(President), AH Woodill, D Nathan Tupper, BG Gray, Rev Robert Murray, and JC Mackintosh.

358

Keeper of the rolls.

359

Section 4.

360

Fingard, Victorian Halifax, supra note 312 at 173.

361

Dubinsky, supra note 355 at 15.

362

This is the year in which the Act for the Prevention and Punishment of Wrongs to Children, SNS

1882, c 95 was introduced.

363

Dubinsky, supra note 355 at 17.

113

protection of children would become the model for the introduction of anti-cruelty to

children legislation enacted in Nova Scotia in 1882.

The first piece of legislation that provided for the protection of children was

actually passed in 1880, with an amendment to the Act to Incorporate the Nova Scotia

Society for the Prevention of Cruelty to Animals that allowed the Society to bring a

complaint before any court or magistrate who had jurisdiction for laws pertaining to

children under the age of sixteen.

364

The Society’s first attempt at more comprehensive

legislation occurred at the federal level a year later. In 1881, Society President and Member

of Parliament Matthew Richey attempted to persuade the federal government to pass

national legislation for the protection of children without success.

365

The Society’s efforts

then returned to the provincial level of government and in 1882 the Society successfully

petitioned the Nova Scotia government to pass their prevention of cruelty to children

legislation, based upon the precedent that they had received from the New York Society.

In 1882, the Legislature introduced the Act of the Prevention and Punishment of

Wrongs to Children

366

– the first child protection statute in Canada. The 1882 Act was

quite short, comprised of only seven provisions, and applied to minors under the age of

sixteen. The Act cannot be said to have been wholly focused on the prevention of wrongs

to children by parents and guardians; it also focused on the actions of proprietors, keepers

or managers of certain unsavoury places. The Act was intended to prevent minors from

being admitted to any “saloon or place of entertainment where any spirituous liquors or

wines or intoxicating or malt liquors are sold” or in “any of the places of amusement known

364

An Act to Amend the Act to incorporate the Nova Scotia Society for the Prevention of Cruelty

to Animals, SNS 1880, c 68, s 1.

365

Fingard, Victorian Halifax, supra note 146 at 172.

366

SNS 1882, c 95.

114

as dance houses, clubs, or concert saloons” nor into “any bawdy house of ill fame”.

367

proprietor, keeper or manager who could be shown to have admitted a minor or allowed a

minor to remain on the premises could be found guilty of an offence and liable to pay a

fine, failing which, the offender would be committed to a common gaol.

368

Section 4 of the

Act placed the onus on the accused to show that the minor was of age.

The legislated harms to children that ground the legal justification for relieving the

parent of care and custody provided:

Whenever the parent or other person having the care and custody of a child [under

the age of sixteen years], is convicted before any court or magistrate with having

assaulted, beaten, ill-used, abandoned or treated said child with habitual cruelty

and neglect, or said child is suffered to grow up without salutary parental control,

or in circumstances exposing him or her to lead an idle or dissolute life and the

court or magistrate before whom such suspicion is had, deems it desirable for the

welfare of the child.

369

The strong moral tone to the latter grounds: without salutary parental control and

exposure to an idle and dissolute lifestyle, point to the private philanthropy or religious

character of social reform work and legislation at the time. The circumstances that might

expose a child to lead an idle or dissolute life were a product of the coupling of poverty and

criminality in the minds of many of the upper and middle class in Halifax at the time.

370

The Prevention and Punishment of Wrongs to Children Act allowed for the interventions

of police and philanthropic volunteers to address parental criminal behaviour, and also to

address the failure of parents to properly socialize the child – a transgression not strictly

within the scope of vagrancy or criminal law at the time. Furthermore, treating children as

criminals did not accord with Victorian the view of children as the deserving poor and with

367

Section 1.

368

Sections 5 and 6.

369

Section 3.

370

Phillips, supra note 280.

115

the view of childhood as a protected sphere of innocence and dependency.

371

Instead,

responsibility had to be found elsewhere for the behaviour and proper socialization of

children. While intervention with children was necessary, the notion of punishment had

to be directed elsewhere. Focusing on the guardianship rights of parents and thereby

“familializing” crime and punishment as far as wrongs to children were concerned, served

to direct attention to punishing the wilful act of parents, not children.

The provisions of the Act complemented the work of the specialized institutions

that had begun to transform the workings of the Poor Law in Halifax. The Act provided

that the court could make an order removing the child from the care and custody of his or

her guardian and have “the child committed to an orphan asylum, charitable or other

institution, or such other disposition thereof as now is or hereafter may be provided by law

in cases of vagrant, truant, disorderly, pauper or destitute children.”

372

The link between

prevention of cruelty to children and the settlement and regulation of poor children is quite

clear. The child protection activities of the Society were largely funded by way of municipal

settlements of children garnered under the Poor Law, or by the enforcement of private

provision for children by fathers under the Bastardy Act and enforced by the criminal law

powers of the city.

The Act was also, however, very much a product of the “law and order”

environment of the time.

373

The usual suspects involved in policing the poor: the police,

the magistracy and the prison system – in conjunction with the private philanthropy

movement – were to be the main players in this Act. Much of the Act is written in terms of

371

For a discussion of how child-saving grappled with this Victorian concept of childhood in Halifax,

see Rooke and Schnell, Discarding the Asylum, supra note 143 at 96-97.

372

Section 3.

373

For a discussion see Michael Boudreau, City of Order: Crime and Society in Halifax, 1918-35

(Toronto: UBC Press, 2012).

116

offences, fines, informants, summary convictions, imprisonment for failure to pay. While

the first three sections of the Act set out the grounds that will find a child to be a product

of cruelty and allow for the child to be removed from the premises or removed from

parental custody and institutionalized, the final four paragraphs are concerned with

charging persons with offences. Cruelty to children, then was seen very much in Poor Law,

as well as criminal and vagrancy law terms – it was an offence to be found guilty of

contributing to the moral endangerment of a child, to neglect a child or to physically harm

a child. For this offence one would be fined for a sum of money not exceeding $100 but no

less than $20.

374

If an offender did not pay the fine they would be confined to jail for not

more than 90 days but not less than 30 days.

375

The Act is important in terms of family law reforms as it is the first piece of

legislation in Nova Scotia to allow judicial intervention into the family in the name of the

welfare of the child. The Act provided that where a person having the care and custody of

the child is found to have misused the child or allowed the child to grow up without salutary

control, the court could make an order it “deems desireable for the welfare of such child.”

376

The courts would not have such legislated authority to intervene in determining private

custody decisions between parents in the name of the welfare of the child until some 11

years later in the 1893 Custody of Infants Act. Before the introduction of the Custody of

Infants Act, the Divorce Court could have made an order as to custody pursuant to the

Court of Divorce Act, however, the legislative authority for custody did not contain an

explicit consideration of the welfare of the child. Instead the Act merely provided:

The Court shall have the same powers in respect of or as incidental to divorce and

matrimonial causes, and the custody, maintenance, and education of children, as

374

Section 4.

375

Section 6.

376

Section 4

117

are possessed by the Court for divorce and matrimonial causes in England, except

as are enlarged or abridged, or altered or modified, by this Act and the Act hereby

amended. But in causes instituted on the ground of adultery, the court shall not

have authority to permit the introducing co-respondents, or to try the issue of fact

by jury.

377

Like the private family law reforms that would be contained in the Custody Act, the

Prevention and Punishment of Wrongs to Children Act evidenced the state promoting the

notion that child guardianship was not an absolute right of the father; rather, parents were

to act more as trustees of children, attendant to the welfare of the child.

Furthermore, while the Custody of Infants Act, the Alimony Act, Adoption Act and

Matrimonial Property Acts all saw advances in rights for women, these have to be

contextualized against the patriarchal backdrop of the family. The courts could intervene

to shift custody, support, property and rights to consent to adoption in favour of the wife

or unmarried mother, but this did not serve to displace the primacy of the patriarchal

position of the father. As we saw earlier, at common law it was the father who had the de

facto claim to sole guardianship of the child, until the wife was able to succeed in court in

displacing this presumption. While rules such as the “tender years doctrine” eventually

helped the mother to convince the court that the welfare of the child was best met in her

care, the reality was that she was required to ask the court to make such a

pronouncement.

378

By contrast, the common law still provided that absent such an order

from the court, the father had the sole de facto claim to guardianship of his legitimate

child.

However, when we look at the text of the Prevention and Punishment of Wrongs

to Children Act we see no such assumption of patriarchal supremacy contained in the Act.

377

Court for Divorce Act, SNS 1866, c 13, s 10. It is also noteworthy that as of 1867, the passing of

divorce legislation would have been ultra vires the authority of the provincial legislature.

378

And, as Constance Backhouse has pointed out, even when mothers did apply for custody, judges

were often resistant to displace the father’s authority within the family. See Backhouse, “Pure

Patriarchy” supra note 183 at 291.

118

The terms “parent and guardian” are used constantly without any reference to “father” or

“mother”. Furthermore, the Act speaks only of “persons convicted” or “persons charged”

with offences under the Act. The characteristically gendered dynamics of the common law

family and of the newly introduced private family law acts of the late 19th century are not

present in the Prevention and Punishment of Wrongs to Children Act.

While the absence of legislative support for the patriarchal workings of the

common law family may at first appear progressive, it could likewise be seen as a clue as

to the fundamentally different assumptions undergirding the Act, not only as to the nature

of intervention, but also as to the nature of the family in which the Act is facilitating

intervention. The propertied family was accorded a modicum of privacy with respect to

public intervention by virtue of patriarchal control over the private sphere, but patriarchal

power in the family in poverty was of much lesser consequence in the relationship between

the family and the state. Apprenticeship legislation, guardianship legislation and poor

relief legislation of the time all contained a coupling of property, patriarchy and privacy.

Without property there was no patriarchal discretion to determine the child’s

apprenticeship, and the child and the child’s wages become the responsibility and the

property of the overseers of the poor once the family applied for poor relief.

379

The content

of a substantive right to the guardianship of children, then – one which would be accorded

full rights to patriarchal privacy – was contingent upon a propertied paternal figure.

Furthermore, the social and economic realities of the day would have meant that

many families in Halifax at the end of the 19th century would have been functionally, or

actually, mother-headed families, including unwed-mother-headed families. Industrial

accidents causing death, “desertion”, “intemperance” and unwed-motherhood were all

379

Of Masters, Apprentices and Servants, SNS 1858, c 125, s 6.

119

realities of the time and had a substantive effect on the shape of families in poverty.

380

The

Prevention and Punishment of Wrongs to Children Act, then, by default extended these

very minimal rights to mother-headed households. In setting out the harms that would

justify a legalized intervention into the private sphere of the family, the Act in effect set out

the terms of the private sphere of the family in poverty – and in many cases, the mother-

headed family in poverty. Parents – in either father-headed or mother-headed families -

could retain guardianship of their children as long as they were able to financially support

the children and keep them off poor relief, abstained from assaulting, “ill-using”,

neglecting or treating the child with habitual cruelty, and as long as, in the course of

financially supporting the children, they did not “expos[e] him or her to lead an idle or

dissolute life.” For single mothers, this would have provided some protection of their

tenuous right to custody of the child, but more importantly, it provided a sketch of what

society would accept as the proper form of their caretaking.

These qualified protections for mother-headed families were consistent with

amendments passed at the end of the century which saw even unwed mother-headed-

households receiving a modicum of legalized protections. While unwed mothers had only

de facto responsibility for their children and no legalized rights to custody under the

common law,

381

in 1896 the Nova Scotia legislature passed Canada’s second piece of

adoption legislation after New Brunswick’s 1873 Act: the Adoption of Children Act.

382

Nova

Scotia’s Adoption Act provided unwed mothers with a modicum of protection against

involuntary removal of their children. The amendment provided that no order for adoption

380

Gordon, “Single Mothers and Child Neglect”, supra note 68 at 176.

381

Blackstone, Commentaries, Book 1, Chapter 16.

382

SNS 1896, c9.

120

of an illegitimate child could be made without the mother’s consent.

383

However, the Act

also provided that the consent of the mother could be dispensed with under the following

circumstances:

384

 the mother is incurably insane;

 the mother is imprisoned in a penitentiary and has yet to serve three years

at the time of the application;

 the mother has for two years willfully deserted or neglected to provide

proper care and maintenance for the child;

 the mother has allowed the child to be supported by a charitable

organization or as a pauper by the city;

 the mother has been convicted “of being a common drunkard, and neglects

to provide proper care and maintenance for the child”;

385

 the mother has been convicted “of being a common night walker, or a lewd,

wanton and lascivious person, and neglects to provide proper care and

maintenance for such child.”

386

Recognizing that many families in poverty were in fact mother-headed families due

to unwed motherhood, desertion, death, or the out-migration of the husband, the Act, like

the Adoption Act amendment in effect legalized the scope of responsibilities for these

families.

387

Unlike the Adoption Act amendments, however, the Prevention and

Punishment of Wrongs to Children Act did not provide the mother with any affirmative

protections with respect to custody of her child. In fact, the Prevention and Punishment of

383

Ibid, s 2(1)(d).

384

Ibid, s 3(1).

385

Ibid, s 3(1)(e).

386

Ibid, s 3(1)(f).

387

Linda Gordon, for example, asserts that “neglect” and “single motherhood” were interdependent

social problems of the time. Single mothers were so often found to be neglectful because they were

establishing themselves as heads of households which seemed “reprehensible to those holding

traditional views about normative family life.” Gordon, “Single Mothers and Child Neglect”, supra

note 68 at 175.

121

Wrongs to Children Act evidences nothing in the way of due process rights, beyond the

setting out of harms that constituted wrongs to children justifying removal.

While the new child protection legislation was written so as to provide for the

legalized abrogation of “natural” parental rights to care and custody of the child, in reality,

these rights for families in poverty, especially mother-headed families, were tenuous. The

realities of poverty and exclusion, as well as the inevitability of the family’s regular contact

with members of private charitable organizations practicing “friendly visiting”, police,

stipendiary magistrates and overseers of the poor, meant there was little in the way of

“family privacy” for these families. In effect, then, the Act added a new contingency upon

which guardianship of children in poor families was based: the family in poverty was now

required not only to ensure the physical and financial well-being of children (ie., keeping

them off poor relief) but their guardianship rights were contingent upon ensuring both

their actions and the actions of their children adhered to a moralized social order

consistent with the philanthropic discourse of the day. A family’s rights to guardianship of

the child were given a definite content: it was not just violence against the child that

warranted state intervention, but also allowing a child to become truant, to use tobacco, to

frequent places of ill repute, or “exposing the child to a dissolute lifestyle”. In short,

guardianship of the child was premised on the ability of the family in poverty to properly

socialize the child to a morally upright citizenship. The Act served to legalize and naturalize

moralized views of the caretaking activity of the city’s poor, and in particular, the

caretaking activity of single, or functionally single mothers.

Intervention into the poor family, however, was not just repressive. Aside from

focusing society’s attention on the physical well-being of children, it also meant the

deserving poor – children and “the infirm” - saw their individual social and economic

positions improved. Orders to be removed from homes of impoverished and abusive

families to orphan asylums – in the name of the welfare of the children -- were an

122

improvement on the provision of poor relief to children. Before the creation of separate

asylums for children and interventions in the name of their welfare, children were either

completely neglected by state intervention or received the same treatment as adults in the

criminal and poor laws of the time.

388

So bad were conditions for children in the Poor

House that in the early part of the 19th century Commissioners of the Halifax Asylum and

Poor House reported that “the appearance of the majority of children kept here…[show]

evidence of an unwholesome atmosphere and a degree of confinement highly injurious to

them” both in terms of health and in terms of future prospects such as apprenticeships.

389

Children’s homes would have provided education and training for these children that,

while preparing them for the low paid work of the lower classes, nonetheless would provide

them with economic opportunities.

390

Furthermore, as the next section will discuss, women in poverty were active

participants in this philanthropic work, calling on the Society themselves and shaping the

work the Society carried out in their families. However, calling on the Society came with

the danger that one’s child caring would come under scrutiny and this could see the

removal of the child to a home. State intervention into the private sphere of the middle and

upper class families in the name of protection of women and children meant greater formal

legal equality for women in propertied families. But there was not the same readjusting of

legal power between husband and wife in the poor family. The child in poverty, not the

mother, received the protection of domestic relations laws.

388

Rooke and Schnell, Discarding the Asylum, supra note 143 at 42.

389

Cheryl Lee Des Roches Thesis, supra note 295 at 87.

390

Fingard, Victorian Halifax, supra note 146 at 130. The next chapter will go into greater detail

about the actual character of intervention with children in these homes and how this intervention

also served to reproduced raced, gendered and ableist notions of propriety and best interests.

123

Acting “in the Shadow of the Law”

391

: Daily Work of the Society

By 1882, the Society was given official legal sanction to bring cases of wrongs to

children by parents, guardians, and proprietors to court. Fines collected under the Act

would then be used to fund the activities of the Society.

392

Data from the Society’s 1884-

1885 annual report indicates that the society intervened in 161 cases involving children in

Halifax. The following is a breakdown of the wrongs committed against children followed

by the number of children against whom these wrongs were committed:

393

Sent out begging by worthless parents 20

Neglected by drunken father 42

Neglected by drunken mother 6

Neglected by others: baby-farmers (8), ill-treated by

aunt (6), father (10) adoptive parents (5), strangers (6),

stepmother (1), mother (3) 39

Abandoned: father (4), mother (3), mother & father (3) 10

Persons with vicious dogs that attacked children 3

Excessive punishment by school teacher 1

Rescued from improper homes or company (girl under 16) 5

Clothes provided (7), food, etc, when sick (6) 13

Cautioned at request of parents: boys (3), girls (4) 7

Homeless, sent to homes or institutions 14

Reward to boy for rescuing drowning child 1

Therefore, of the 161 cases involving children, 117 of these cases were for neglect

(ie., including those listed as “neglect” and those listed as “sent out begging”, and

“abandoned”).

394

Children who were removed from the home around this time in Halifax

were often sent to the country where it was said that farm work and country air would do

391

Constance Backhouse, “Divorce and Separation” in Petticoats and Prejudice: Women and Law

in Nineteenth-Century Canada (Toronto: Women’s Press, 1991) at 181. Backhouse has

characterized the work that the Society undertook for women such as negotiating agreements for

maintenance as acting “in the shadow of the law”.

392

Section 5.

393

Fingard, Victorian Halifax, supra note 146 at 176.

394

Ibid.

124

them a world of good away from the unsavoury influences of the city.

395

While this might

have been true for many children, many other accounts have indicated that children were

used as low wage labour in these areas. As one account from 1870s Ontario reported, when

a child welfare investigator visited a young girl who had been sent to the country to work,

she told the investigator that she believed “’doption sir, is when folks get a girl without

wages.”

396

In other cases, children would be sent to the Halifax Industrial and Ragged

School, the Saint Patrick’s Home for boys in 1885 and the Good Shepherd Industrial

Refuge in 1890.

397

In her research on the work of the Massachusetts Society for the Prevention of

Cruelty to Children in Boston from the years 1880-1920, Linda Gordon found that cases of

child neglect were far more prevalent in the work of the Boston Society, than cases of child

abuse as we understand them today. And furthermore, families in poverty, including a

large number of single mothers, were consistently overrepresented as neglectful

parents.

398

Gordon writes:

Only one variable other than single motherhood was a better predictor of court-

ordered child removal: poverty. Yet this was just another aspect of the same

phenomenon, for single mothers were poorer than other parents. From 1880 to

1920, forty-four percent of single mothers were in economic deprivation, as

compared to twenty-six percent of two-parent families. Only ten percent of single-

mother families reached the economic level defined as competence, as compared

to thirty-one percent of two-parent families. Of course, most of the MSPCC's clients

were poor, not because poor people treated their children worse, but because they

were more likely to be caught, and because poverty accounted for a considerable

proportion of what maltreatment of children was.

399

395

Ibid at 124.

396

Craig Heron, “Review: Saving the Children” (1983) XIII.1 Acadiensis 168 at 174.

397

Fitzner, supra note 138 at 44.

398

Gordon, “Single Mothers and Child Neglect” supra note 68 at 176.

399

Ibid at 180.

125

While the work of the Society in Halifax for the year between March 1884 and

March 1885, does not show an overrepresentation of mothers in the list of parties that

committed wrongs against children, like the cases before the Boston Society, poverty

played a large role in these cases. This is not to say that families in poverty did not also

mistreat their children, but as the previous section discussed, charging parents with

wrongs to children in the form of physical and emotional abuse as we know them today

was only part of the work conducted under the Act, and as Gordon’s research reveals,

comprised far fewer cases than “neglect”.

400

While addressing the physical and emotional

cruelty that many children no doubt experienced in these insecure social and economic

times was an important step in protecting the interests of children, the Act and the Society

that enforced the Act also changed the legal and social landscape of how families in poverty

were regulated.

In fact, even though the Society pushed for legislation to prevent cruelty against

children, as Judith Fingard’s research has revealed, “[t]he prime function of the SPC

between 1880 and 1900 was the provision of marriage counselling and legal aid for

estranged couples and harassed spouses, usually at the instigation of the wife.”

401

Urbanization, intemperance, industrialization and outmigration created a great deal of

stress on the family.

402

Even though women in families in poverty did not have access to

superior courts to advocate for the new rights to property, they used the services of the

Society to advocate for themselves and to enforce their new rights even without access to

the formal channels of law. A look at the records compiled by the Society for the Prevention

of Cruelty in 1892, for example, gives us a small view into how the work of the Society was

400

Ibid.

401

Fingard, Victorian Halifax, supra note 146 at 176.

402

Ibid.

126

focused on acting as advocates for the women who came to them when they experienced

problems with alcoholic and deserting husbands:

#5172 January 14th, 1892 Mrs. Hugh Brammey

Reports the husband for being [a confirmed drunk] and illusing and neglecting her.

Only recently he was arrested and then gave her an order to get $10.00 out of his

[omitted]. Wants separation to go to Boston to father and wants to get some

support. Wrote to him to call tomorrow at 12 o’clock.

#5173 January 14th Mrs. Mary Burnett 78 Creighton Street

Reports that her husband is drinking and has illused her and is continually

threatening her.

#5177 January 25th Mrs. H. Brammey

Made out Deed of Separation between J. Brammey and wife.

#5195 February 9th Mrs. Revelle 94 Argyle Street

Reports her husband for being a confirmed drunkard and illusing her. Cautioned

him.

#5210 March 16th Mr. Ryan Dartmouth, employed by the Halifax

Sugar Refining Company

Dear Sir,

We have a man working for us called Ryan whose wife informs us that he has been

illusing her, and get to length of threatening to take her life, and I am told she is so

much in fear of him that yesterday she left her home taking her children with her.

E. Downie.

Wrote and cautioned him.

#5216 March 17th Mr. Ryan Dartmouth

Employed at Halifax Sugar Refining Company. Has taken his wife home again and

her 3 children and has promised to live peacefully.

#5221 March 23rd Martin Leahy 10 Jacob Street

Mrs. Emily Leahy reports that her husband, who is a shoemaker, struck her several

times with his clenched fist in the face and threatened to take her life. Her face was

in a terrible state. He was not drunk at the time.

Mrs. Sarah Fisher, Mrs. Grey and Mrs. Take saw the assault.

Issued warrant.

Thursday 24th March, Leahy was, on the intercession of his wife, ordered to pay

$3.40 and take the pledge and find bonds to keep the peace.

#5250 April 4th, 1892 Richard Fisher Atlantic St.

127

Mrs. Fisher reports that her husband is an habitual drunkard and lead her a

miserable life. He has not been to work all the winter – he lives on his wife’s

earnings, who gains her living by washing and making dresses, etc. He struck her

and knocked her down on Wednesday last. Came home drunk at about 11pm.

Saturday night and made trouble. Mrs. Fisher slept at her son’s house and when

she went back the next morning her husband had all the doors and windows barred

and would not open to her. Wishes for a separation.

#5270 May 13th Mary Anne Welsh 322 Lower Water St.

Reports that her husband James Welsh brutally assaulted her on Wednesday night,

the 11th of May. He was drunk. Both Mrs. Welsh’s eyes are black and her upper lips

badly bruised [omitted].

#5274 May 17 Isaac Sampson

Maggie Sampson reports that her husband has again deserted her and gone to his

parent’s at Arichat on board of a schooner that sailed from Halifax yesterday

morning. She has telegraphed to the authorities at Arichat to detain him and wants

me to issue a warrant.

#5379 May 21 George Weaver 186 Lower Water Street

Mrs. G. Weaver reports that her husband illtreated her on Wednesday last then left

the house and has not returned since. He left his wife and a 5 weeks old child

nothing to live on. He, George Weaver, was seen on board a steamboat this

morning, but he was not there when his wife went to look for him.

403

The use of temperance discourse at the time to help enforce the private provision

of support from husbands (ie., the emphasis in every case on the reason for the withholding

of support or the reason for abuse being the husband is a confirmed drunkard) is

significant. Much of the interventionist or protectionist activity into the family at the time

was justified on the basis that intemperance meant the man could no longer be trusted to

undertake his common law obligations to protect the family.

In her research on the Boston Society, Linda Gordon likewise found that rather

than being simply a form of social control of the lower classes, in many cases, women in

403

Records of the Society of the Prevention of Cruelty (1892) Halifax, Nova Scotia Archives (MG

20, vol 513). These notes are hand written so they are often very hard to decipher. I have tried my

best to capture every word but where there is some confusion I have omitted the word.

128

poverty in Boston between 1880 and 1920, used the services of the Society to advocate for

themselves and their children. Instead of seeing the women that called upon the Society

for assistance as victims, Gordon’s study shows that they “maneuvered to bring child

welfare agencies into family struggles on their sides.”

404

She writes that while there “was

no Society for the Prevention of Cruelty to Women, but in fact women…were trying to turn

the SPCC into just that.”

405

Women approached the Society, sometimes as perpetrators of

wrongs against children, and sometimes as victims themselves. Gordon writes that women

were not mere innocents, they could shape their claims and manipulate the Society to get

what they wanted. She writes: Poor women often denounced the “intervention” of outside

social control agencies like the SPCCs but only when it suited them, and at other times they

eagerly used and asked such agencies for help.”

406

But overall, their interactions with the

Society provide evidence that women in poverty had a profound impact on the work of the

Society, both to their aid and to their detriment.

Similarly, Judith Fingard has found that while “anywhere from one-half to two-

thirds of the society’s cases related to the protection of children”, the other half or third

were largely taken up assisting women.

407

Data obtained by Fingard for the year 1884-

1885, for example, shows that in a total of 278 cases handled by the Society that year, 161

saw the Society assisting children, 96 cases involved assistance to women and 21 cases

involved assistance to men.

408

Fingard reports that married women often approached the

society on their own initiative with two types of complaints: the first being non-support

404

Gordon, “Family Violence, Feminism and Social Control”, supra note 43 at 472.

405

Ibid.

406

Ibid at 467.

407

Fingard, Victorian Halifax, supra note 146 at 177.

408

Ibid at 176.

129

and the second being fear of an abusive husband. Her research has revealed that

overwhelmingly the majority of the cases brought before the Society on behalf of women

were for non-support:

Nineteen of the 68 cases involving females, primarily mothers, recorded in the

Society’s records in 1897 were for non-support. In 1900, 34 of the 119 female-

centered cases fell into this category. In each of these two years the non-support

cases constituted the single largest category of female cases. Although physical

mistreatment frequently accompanied non-support complaints, women seem to

have put up with black eyes and bruises as long as they received their share of the

husband’s wages. It was not brutality which precipitated family crisis.

409

Fingard reports that a great deal of the work undertaken by the Society in terms of

its work with women was informally working out agreements between partners or

enforcing support in court.

410

Women would approach the Society for assistance with the

police magistrate to obtain separation and maintenance orders – the poor women’s form

of divorce. Criminal prosecution of cruelty or violence against the women themselves was

not the dominating pre-occupation of the Society. Fingard reports that complaints under

this Act “were frequently withdrawn before they reached the court by women worried

about their husband’s revenge or the interruption of their means of support” by a

breadwinner being incarcerated, or out of fear that a fine levied without the family’s ability

to pay.

411

In fact, Backhouse indicates that this withdrawing of complaints of domestic

violence was a common tactic for the Society in advocating for women “in the shadow of

the law”.

412

She writes that since 1879 the Society, “an all-male organization,” had turned

their attention to wife battering. However, even though the Society would bring charges of

409

Fingard, “The Prevention of Cruelty”, supra note 182 at 88.

410

Ibid.

411

Ibid at 97.

412

Backhouse, “Divorce and Separation”, supra note 391 at 181.

130

abuse under the criminal law

413

they would use these charges as leverage with which to

negotiate agreements for maintenance for women.

414

Fingard’s research also reveals that despite the fact that upper and middle class

women, including the early “maternal feminists”, were so active in the private

philanthropy and temperance movement at the time, they did not play a strong direct role

in the work of the Society.

415

While the ladies’ auxiliary raised funds for the Society, the

general work of the Society was undertaken by men such as Naylor and his supporters.

416

Furthermore, while women were active in the animal cruelty aspect of the Society, Fingard

notes their absence in the activity relating to wife abuse and neglect.

417

She argues that the

absence of middle class Halifax women in the wife abuse work may have been a reaction

to what they would have seen as too radical an engagement with the family.

418

Fingard

writes:

Their failure to extend their concern to abused wives lies partly in their milieu. In

a small, still relatively close-knit community where progressive ideas caught on

slowly, intervention in matrimonial matters was too radical a step for the wives and

daughters of the respectable middle class. As Margaret Hunt has recently argued,

the privatization of middle-class family violence rendered it “unspeakable” and

condemned its witnesses to silence. That silence prevailed among female activists

in Halifax.

419

413

In fact, it was more likely that these charges were brought under the Offences to the Person Act.

414

Backhouse, “Divorce and Separation”, supra note 391 at 181.

415

Fingard, Victorian Halifax, supra note 146 at 175

416

Fingard, “The Prevention of Cruelty”, supra note 182 at 87.

417

Ibid.

418

This is despite the fact that the activity of the Women’s Christian Temperance Movement in

Ontario, for example, at the time was directed at the twin evils of both temperance and male

brutality in the home. See Backhouse, “Divorce and Separation”, supra note 391 at 180-181.

419

Ibid.

131

With the work of the Society and the introduction of the 1882 Act, we are able to

see the character of intervention into the private sphere of the poor and working class

family. The intervention no doubt provided important protections for vulnerable children

who, unlike the women that approach the Society, could not advocate for themselves.

Furthermore, unlike the formal legal system, the Society provided a modicum legal relief

for women. Superior courts would have been largely inaccessible to these women. Without

private means of support – such as owning one’s own home, business, or relying on one’s

own wages from taking in boarders or cleaning houses,

420

for example, or relying on

wealthier extended family members – married women’s property acts and custody acts

would have done very little for them. On the other hand, the Act and the work of the Society

served to bring the child caring work of families in poverty and especially mothers in

poverty under greater legal and social scrutiny. The Act, its moralized set of harms

justifying intervention, and the work of the Society to enforce these moralized terms,

served to reinforce the view that the caretaking work of these mothers and families was

largely immoral and in need of scrutiny and surveillance by upstanding outsiders.

This situation of socio-economic disadvantage would have been felt even more

keenly by African-Nova Scotian women in Victorian-era Nova Scotia. Furthermore,

opportunities for African-Nova Scotian women to make their own wages in the labour

market were constrained at this time, their main source of wage-earning being domestic

420

It was expected that once a women was married she would leave the labour force, infra at 19.

For a description of the type of labour that women in late-19th, early-20th century Nova Scotia would

have under taken see: DA Muise, “The Industrial Context of Inequality: Female Participation in

Nova Scotia’s Paid Labour Force, 1871-1921” (1991) XX.2 Acadiensis 3. In her article on the Jost

Mission, Christina Simmons has described the importance of cleaning work to working class women

who were “pushed into the labour force by their husbands' death, disability, desertion, or

unemployment”. See Christina Simmons, “Helping the Poorer Sisters”: The Women of the Jost

Mission, Halifax, 1905-1945” XIV (1984) Acadiensis 3 at 3.

132

service, taking in laundry, or sewing.

421

African Nova Scotian women were less likely than

their white counterparts to have inherited their own independent source of wealth.

Furthermore, the activity of African Nova-Scotians in or out of poverty, was adjudged by

white Nova Scotian society at that time to be presumptively immoral and worthy of

suspicion. African Nova Scotian families at the end of the 19th century, vulnerable by

reason of exclusion from social, economic and legal supports, would have experienced an

even more repressive side of the moral regulation given legal credence by the Act.

422

While calling on the Society for assistance may have provided a modicum of access

to justice, of course, it came at great risk to mothers in poverty because they were faced

with the possible removal of their children from the home. Once an order was made under

the Prevention and Punishment of Wrongs to Children Act, children could be adopted out

from the Infants Home without parental consent. Should the Society be unable to arrange

a private means of support for children, an order placing them in the Infants Home could

see their removal from families indefinitely. In re Mahoney,

423

the mother of two

illegitimate children who were committed to the Halifax Infants’ Home brought an

application for habeas corpus after the children were removed from the Home to the

United States.

In re Mahoney it is difficult to determine the exact facts that led to the children

being removed from their mothers’ care to the Infants’ Home. The following facts are

provided:

On the 8th June, 1885, Ellen McKenzie was convicted before Henry Pryor, Esq.,

Stipendiary Magistrate of the city of Halifax, for neglecting and illusing her two

421

Morton, “Separate Spheres” supra note 317 at 67. Fingard’s research has also indicated a higher

prevalence of African Nova Scotian prostitutes at this time relative to the size of the community due

to constrained opportunities in the private labour market. See Fingard, Victorian Halifax, supra

note 146 at 105.

422

Ibid at 69.

423

(1892) 24 NSR 86.

133

infant children, Jerry and John Mahoney, (illegitimate), under the age of three

years, and, it appearing that the children were suffered to grow up in circumstances

exposing them to lead a dissolute life, it was adjudged that the mother be deprived

of the custody of the children, and that they be committed to the Halifax Infants’

Home, subject to the rules, regulations and discipline of that institution. The

children were sent to the home on the same day.

On the 31st May, 1889, a writ of habeas corpus was allowed, on the application of

the guardians of the two children, directed to the matron of the home and the

chairman of the advisory committee requiring them to have the bodies of the

children before the court.

A return and amended return were made to the effect that the children, being of

suitable age, were placed with fit and proper persons, who undertook to give them

homes; that one of the children had been removed to the United States of America,

out of the jurisdiction of the court, and that, after enquiry, it had been found

impossible to ascertain where the other was at the date of the issue of the writ, or

since.

424

It appears from these facts that this single mother was convicted on the basis of

suffering her children to “grow up in circumstances exposing them to lead a dissolute

life.”

425

There was great concern at this time about the immoral conduct of poor and

working class women and ridding the city of prostitution was a particular focus at this

time.

426

The very fact that this single mother had two children under the age of 3 in itself

means that her sexuality would have been offensive to a conservative moral and religious

society of the time, but whether she also worked as a prostitute or was known by her

neighbours to be “intemperate”, we don’t know.

What is important about the case is that it shows that a stipendiary magistrate of

the time – that is, a low-level municipal court judge who would hear minor civil and

criminal offences – could make an order on ill-defined grounds and forever remove two

424

Ibid at 86.

425

Ibid at 87. Without the exact facts of the case we cannot know what comprises a “dissolute” life,

but it would be one which calls into question the morals of the mother.

426

Fingard, “The Prevention of Cruelty”, supra note 182 at 96.

134

children from the custody of their mother, all in one day. It appears that in the four years

from the time the mother was originally convicted and the children sent to the home, to

the date of the habeas corpus application, two men – Frederick McKenzie and Charles W.

McGinn – had applied to Supreme Court and were awarded custody of the children.

427

While the case does not indicate who these men are, it is safe to assume that at least

Frederick McKenzie was a relation, although presumably not the husband, of Ellen

McKenzie. The men brought the application for habeas corpus against the Infants’ Home

but the children had already been removed to the United States.

In dismissing the habeas corpus application the Court held that, once the children

were removed to the Infants’ Home, the home had sole guardianship over the children and

could dispose of their custody as it wished. The rules and regulations of the Home provided

that it would look after the children while they were of tender years (approximately 7 years

old) but that after that it would find fit and proper persons to give them a home. Once the

Home handed over the children to such “fit and proper persons,” the Home no longer had

any responsibility to them.

428

In this case the Court found that there was no reason why

the Home couldn’t send the children to live in the United States. The Court also found that

once the Home handed the children over to such “fit and proper persons” it had no

obligation to make further enquiries into the whereabouts or welfare of the children. By

the time of the habeas corpus application, it was asserted by the Home that it was

impossible to ascertain the exact whereabouts of the children.

We see here the extent of the power of the legalized intervention into the family in

poverty, yet with little actual legal protections. The only intervention of the courts in

removing these children from the care of their mother and their removal to the United

427

Ibid.

428

Ibid at 88.

135

States would have been the hearing in front of the stipendiary magistrate for Halifax. It

appears as if the hearing was confined to a single day (or less) and it is not known if the

mother was represented by counsel. On the other hand, the Home would have been able

to determine the fate of these children absolutely. There was no hearing which determined

whether the parents and guardians in the United States were “fit and proper persons” but

only the discretion of the Infants’ Home. Once the Home had done its job of finding these

persons and handing over the children, it no longer had any obligation to the children, the

biological mother, or indeed, the adopted parents.

429

Further, the focus of the Society on the child and on passing legislation to protect

the child facilitated the shifting goals of the Poor Law – focus on the deserving poor and

state support for specialized institutions for the deserving. It permitted state intervention

into the poor family without the necessity of the state taking responsibility for the family

as a whole. A focus on the legalized abrogation of “natural” or de facto guardianship rights

of parents in the 1882 Act gave the impression – not necessarily a reality – of a private

sphere accorded poor families, for example, poor, illegitimate, single-mother headed

families such as Ms. McKenzie’s.

Without financial support or the challenging of patriarchal power within the home,

however, this “private” sphere would have been largely illusory, providing women in

poverty with few choices and an incredible amount of responsibility. Even where a mother

did not turn to poor relief to assist in taking care of her child (and having herself and her

child removed to the poor house), if it was deemed that her means or her child’s means of

making a living promoted vagrancy, either her or her child or both would find themselves

imprisoned under vagrancy laws. And finally, if she resorted to voluntarily placing her

child with the city’s child caring agencies, now the Prevention and Punishment of Wrongs

429

Ibid.

136

to Children Act provided that she would lose guardianship of her child in any event. Not

only would women in poor families be responsible to navigate patriarchal relations in the

home, but now they were subject to a repressive legal and social order which brought their

caretaking under suspicion with grave consequence. While family law reforms at the end

of the century saw legislated incursions on absolute patriarchal power in the family, for

women in poverty this meant shouldering a great deal of social responsibility without the

same promise of formal legal protections accorded to women in propertied families.

Conclusion

The end of the 19th century was a time in which the contours of the state were being

reconceived and redrawn in Nova Scotia. The social problems created by industrialization,

out-migration, urbanization and economic depression at the end of the century required a

more active state response. Maternalists, suffragists, child savers, industrialists, workers,

temperance movement and religious leaders all influenced the form this response took.

With more active state intervention, however, came a necessary redrawing of the

boundaries between the public and the private. Industrialization, for example, required

state intervention in the form of legal, financial and physical infrastructure, as well as the

passing of worker protection legislation. But it was not only the boundary between the

public sphere of the state and the private sphere of the market that was being redrawn, but

the boundary between the family and the state was being reconceptualised, as well. The

Victorian family, suffused with patriarchal discretion and maintained by the boundaries of

the common law, was unable to accommodate the needs of all its members and indeed, the

needs of society in these changing social, economic and political times.

At the end of the 19th century there was a proliferation of legislation creating

distinct legal persons of wives and children. Childhood as a distinct sphere was delimited

137

legally by hours of work legislation, factory acts and mines acts which set maximum age

requirements for children. Compulsory education acts were passed which mandated the

attendance of children between the ages of 8 and 14 in either public or private education

institutions. The creation of the legal category of the “child” allowed for the state to enter

into the family and adjudicate upon parental caregiving like never before. The end of the

19th century saw a legislated intervention into the guardianship rights of parents,

establishing that children were not to be seen as chattels but parents were expected to act

as trustees for the welfare of their children. This focus on the welfare of the child at the end

of the 19th century facilitated a scrutiny by the courts and the Society of the relationships

within common law family as never before.

430

At the same time, a great deal of legislation was passed which changed the position

of women – suffrage legislation, married women’s property legislation, as well as adoption

and custody legislation, giving women rights to custody, support and a regime of separate

property. In fact, the passing of custody laws which allowed judges to make orders in the

welfare of the child served to improve women’s positions in the private sphere of the family

by giving them the right to apply for custody of their children and for maintenance of these

children. Through changes to custody law, courts began adjudicating on a father’s right to

custody of his child. With the legal diminution of paternal authority in the common law

family, there was a shift towards greater state intervention in the family. For women who

could support themselves and their children financially, either with their own real or

personal property, wages and/or businesses, with assistance from maintenance and

alimony payments, or extended family, these legalized adjustments promised a modicum

of legal protection for the autonomy of functionally mother-headed families.

430

Backhouse, “Shifting Patterns”, supra note 156 at 213.

138

Legislated interventions on behalf of the welfare of the child did not result in the

same transfer of power for women in poverty, however. The proliferation of domestic

relations laws targeted to protecting children from cruelty and preventing their vagrancy

had a greater impact than matrimonial property or custody law reforms on the lives of

women in poverty. Beyond the minimal protections provided in the Adoption Act, these

domestic relations laws did not serve to improve the positions of marginalized women with

regard to the custody and support of their children.

While the Prevention and Punishment of Wrongs to Children Act, and the activity

of the Society for the Prevention of Cruelty was no doubt successful in improving the

situation of many children in the city of Halifax at the end of the 19th century, the Society

and its new Act also served to delineate the private sphere of the family in poverty and the

basis on which that sphere would be traversed. With the passing of the Act, the family’s

right to guardianship of the child was contingent: it was not just violence against the child

that would see the abrogation of rights to guardianship, but also allowing a child to become

truant, to use tobacco, to frequent places of ill repute, and “exposing the child to a dissolute

lifestyle”. While under the Poor Law fathers who allowed their families to fall on poor relief

lost the ability to direct the care of their children (and to benefit from their wages), now a

new contingency was added to the guardianship rights of parents in poverty. Now, failure

to properly socialize the child to a morally upright citizenship would see parents lose the

right of care and custody their children.

While the new child protection legislation provided for the legalized abrogation of

“natural” parental rights, in reality, these rights to guardianship for families in poverty

were tenuous. The family in poverty was regulated by a myriad of public laws, criminal,

vagrancy laws and the laws of poor relief which would render their right to guardianship

of their children moot. The custodial rights of single (and functionally single) mothers and

especially unwed mothers were uncertain and not until 1896 did they even receive minimal

139

protections against the non-consensual adoption of their children. Furthermore, left with

few choices, many families would have voluntarily handed their children over to homes

that took responsibility for their care. The Prevention and Punishment of Wrongs to

Children Act, then, served to erect a legalized private sphere around the family in poverty

as much as it set out the terms of when and how the boundaries of this sphere would be

traversed. Furthermore, placing responsibility for social order within the private sphere of

the family created the illusion that these parents could control the socio-economic

problems that faced their children. In this sense the legalized intervention into the private

guardianship rights of parents served to responsibilize parents in poverty individually for

the social problems facing their families.

The legislation affecting poor families was not introduced to improve or protect the

position of women, but only of children. Children were the members for which Nova

Scotians were willing to take financial responsibility, but not women in poverty, who were

seen as idle, loose and dependent according to the pauperist discourse of the day. As a

result, women in poor families who wished to keep their families together were left to

ensure not just the financial support of children and the presence of a paternal head in the

family, but now their childrearing was presumptively under suspicion. Family autonomy

was synonymous with the ability to ensure their children adhered to a particular social

order. Furthermore, while the Act served by way of legislation to abrogate the father’s

patriarchal right to use force against his child in the home, no such abrogation was

provided of his right to use force against his wife. Women in poverty were positioned at

the boundary of patriarchal privacy and public intervention; attempting to negotiate both

patriarchal power and the moral scrutiny of outside agents in the home.

As Judith Fingard’s work has shown, however, women in poverty were not total

victims of repressive state and patriarchal power as they were able to draw upon the slim

resources available to craft rights and access to justice for themselves. Fingard’s findings

140

on the use that mothers in poverty made of the Society for the Prevention of Cruelty is

consistent with research conducted by Linda Gordon in Massachusetts. In her study on the

history of the Massachusetts Society for the Prevention of Cruelty Gordon found that far

from being a mechanism of social control, women utilized the services of the Society to

their advantage and to the advantage of their children. As Gordon writes, while there was

no Society for the Prevention of Cruelty to Women, women who called on the Society for

assistance attempted to create one.

431

Furthermore, Gordon argues that much of the child

protection that ensued after the creation of the fledgling Boston Society was influenced by

this activity of mothers in poverty advocating for themselves and their children.

432

Although women in poverty were able to effect a modicum of access to justice for

themselves, however, this was done in the shadow of the law. Women in poverty were

required to call upon the assistance of the Society to negotiate informal agreements, for

example, which required their dropping assault charges and, given their lack of access to

justice in the first place, held little chance of enforcement by law. Furthermore, calling on

the Society for assistance came at a great risk to mothers who could see the loss of custody

of their children. Overall, family law reforms at the end of the 19th century saw a legalized

intervention into both poor and propertied families and a displacing of absolute

patriarchal power to solve larger social problems. However, this legalized intervention saw

women in poverty shouldering a great deal of social responsibility without the same

promise of formal equality accorded to women in propertied families. While it can be

argued that this risk to mothers was justified on the basis that it improved the well-being

of children in poverty, it is not clear that the end result of the intervention of the Society

431

Gordon, “Family Violence, Feminism and Social Control”, supra note 43 at 472.

432

Ibid at 475.

141

was always in the best interests of these children. As I will show in the next chapter, the

institutionalization of children in reformatories and Homes came with its own dangers.

142

Chapter 3:

1908-1940s: The Rise of Delinquency, the Normal Child and Socializing

Justice in Nova Scotia

Its purpose is to help all it can, and to hurt as little as it can; it seeks to build

character - to make good citizens rather than useless criminals. The state is thus

helping itself as well as the child, for the good of the child is the good of the state.

433

The development of the Prevention and Punishment of Wrongs to Children Act

and the regime that policed and enforced the Act, were part of a strategy by both state and

non-state actors, not just of protection for children, but of the proper way to govern the

poor in general. In this chapter I will investigate another shift that occurred in the

provision of protective services to children in the early 20th century: the development of

the Juvenile Delinquents regime, including the juvenile court and the office of the

Superintendent of Neglected and Delinquent Children.

In the early 20th century, concern about cruelty to children began to be articulated

more in terms of prevention and remediation of delinquency and neglect than prevention

of cruelty. The Society for the Prevention of Cruelty, denominational institutions,

probation officers and police formed an important part of this new regime. As well, a new

juvenile court and Superintendent of Neglected and Delinquent Children were created in

1911, which would come to dominate child welfare work in Halifax and the province as

whole by the 1920s. This shift was not just an organizational shift, however, but an

important shift in the way that protection of children was conceptualized. With the

creation of the concept of the “juvenile delinquent” and probationary/reformatory courts,

cruelty to children was no longer dominated by the ideas and practices of amateur

philanthropists. New actors and ideas emerged as a professionalizing cadre of psychiatrists

and social workers and a “socialized” court came onto the scene. While Victorian cruelty

433

Julian W Mack, “The Juvenile court” (1909-1910) 23 Harv LR 104 at 121 – 122.

143

to children discourse was still present, the rise of the juvenile delinquents regime and

specialized actors and institutions within this regime changed the way the intervention

with children was conceptualized and carried out.

With the development of a regime of juvenile delinquency we see a concern for

cruelty to children shift more to a concern with children as delinquents. Foucauldian

scholars have shown us how the concept of delinquent is significant. It marks a shift from

focusing on the acts committed by the criminal, to a focus on abnormality; on using the

knowledge of the human services to assess and work with the delinquent, setting out how

the delinquent deviates from the norm, and working with the delinquent to bring him or

her back in line with the norm.

434

An examination of the early emergence of the juvenile

delinquent regime in Nova Scotia gives us a view of how interventions on behalf of both

state and non-state actors in the child protection regime were undertaken in the name of

shaping future citizens of tomorrow. In other words, rather than just being a way to care

for the children of the poor, Nova Scotia’s child protection regime in the early 20th century

was self-consciously shaping these children in the interests of governance and society at

large.

In this chapter I will show how law and psychiatry worked together to function in

a new way to carry out child protection work. In this era we see the beginnings of the rise

of the socializing justice and the medicalization of delinquency and neglect. This

medicalization was necessary to carry out the purposes of the child welfare system in the

early part of the 20th century – the proper reform and socialization of children and turning

them into upstanding citizens. Therefore, law and psychiatry were performing an

essentially political role – they were working together to set out the terms of the “proper

434

Michel Foucault, Discipline and Punish: The Birth of the Prison (New York, Pantheon Books,

1977); Donzelot, Policing of Families, supra note 13.

144

citizen”. We see the doctors and psychiatrists attached to the Court or working in the

institutions to which children were sent, acting as “technician[s] of social order.”

435

The

proper citizen was a civilized, able-bodied, white, middle-class boy or girl acting out

appropriate gender roles in a sexually appropriate manner. The children that did not fit

within this model were labelled abnormal and the medical, as well as denominational,

regimes were brought to bear on their reform.

The emergence of juvenile delinquency and the capturing of the child welfare

apparatus by the juvenile delinquency regime developed in an era of institutionalization

and denominationalism. The fact of Nova Scotia’s child protection regime remaining so

centered on institutions as opposed to foster care even into the middle of the 20th century

is significant in and of itself. Renée Lafferty has written that the processes of reform

occurring in child welfare work elsewhere in Canada happened quite slowly in Nova

Scotia.

436

While advocates such as J.J. Kelso in Ontario were already calling for de-

institutionalization and removal of children to foster homes by the 1920s, Nova Scotia was

still creating institutions– most infamously, the Indian Residential School at

Shubenacadie and the Home for Colored Children. While de-institutionalization was

accepted as the modern and progressive method for working with children as we moved

into the second decade of the 20th century, Nova Scotia’s child welfare regime still very

much relied upon and hailed the virtues of its institutions. Lafferty, for example, has

written on the importance to the province of the denominational nature of the institutions

and how this coincided with the value and central place that Nova Scotians had long placed

on religious institutions in the Province.

437

435

See Rose, “Psychiatry as a Political Science”, supra note 85 at 6.

436

Renée Nicole Lafferty, The Guardianship of Best Interests: Institutional Care for the Children

of the Poor in Halifax, 1850-1960 (Montreal: McGill-Queen’s University Press, 2012).

437

Ibid.

145

The continued institutionalization of children into the middle of the 20th century

not only gives us a strong documentary record of how this work was undertaken, but it also

marks an active intervention with children on behalf of human services and

denominational personnel that could not have been accomplished in foster families, for

example. The resources available in Nova Scotia in the early years of the 20th century would

not have provided for the home visits and active regulation of families that would be

required in the years after de-institutionalization occurred mid-century. Social work had

not yet become a professional field in the early years of the juvenile delinquent regime in

Nova Scotia. Therefore a survey of the work done with children in the institutions gives us

an early view of how work by human services professionals would look in families in the

years after de-institutionalization (see Chapter 4).

Furthermore, this era also shows us how work with children at this time was

capable of satisfying the interests of statistics and demographic data so popular in this era.

With large populations of children at hand for which data could be easily collected,

knowledge about children and their proper socialization could be compiled in ways that

fostering and adoption services could not accommodate. Psychiatrists and doctors were

called in to work with children in the institutions – not conducting therapy with them, but

using the whole population of institutionalized children to develop statistical models of

prevalence, to classify the children and to set out the appropriate interventions for reform

(ie., job skills) based upon this classification. As historians of psychiatry have shown us,

asylums and institutions in the 19th and early 20th century became important sources of

early psychiatric knowledge.

438

Similarly, Nova Scotia’s child caring institutions were an

important source of child development knowledge.

438

See Nikolas Rose, “Psychiatry as a Political Science: Advanced Liberalism and the

Administration of Risk” (1996) 9.2 Hist of Human Sci 1; Robert Castel, “From Dangerousness to

Risk” in G Burchell, C Gordon and P Miller, eds, The Foucault Effect: Studies in Governmentality

(Chicago: University of Chicago Press, 1991) at 281.

146

Increased focus on science in the institutions, however, coincided with another

more disturbing use that was made of science by governments and policy at this time.

Knowledge about the proper reform and socialization of children was also influenced in

the early decades of the 20th century by an emerging social Darwinist school of thought

and eugenic theories, particularly as far as “feeble-minded” persons were concerned.

439

These ostensibly “scientific” theories about individual deficiency helped to provide

explanations for social inequality that did not require a re-ordering of overarching social

and economic conditions. This medicalized school of thought in the institutions assisted

in characterizing children as normal or abnormal, but it also provided an explanatory

framework for the wider social and economic problems that resulted in the marginalized

positions of these children.

The chapter will finish by showing how the development of the juvenile court, with

its absence of due process rights characteristic of all lower courts at the time, helped to

facilitate the use of these scientific categories in legal decision-making. The role the

juvenile court played in this regime was not a liberal one. It did not act to protect the

individual rights of these children or their families. Rather, the role of the juvenile court

was to legitimize this new role for the child welfare regime and the role of the medical and

denominational personnel who carried out this work. The juvenile court was a site for

“socializing justice”; a shift in legal regulation which occurred in the early decades of the

20th century to facilitate the rise of what Jacques Donzelot referred to as the “social” sector.

The legal concept of the juvenile delinquent, and the reports of the juvenile court which

evidence how the juvenile court judge adjudicated upon this concept became an important

means for disseminating and deploying the medical and psychiatric ideas from the juvenile

delinquent regime, not only on poor children and their families, but on society as a whole.

439

Angus McLaren, Our Own Master Race: Eugenics in Canada, 1885-1945 (Toronto: Oxford

University Press, 1990).

147

Furthermore, there was little recognition of family autonomy in the reports of the

juvenile court judge. This was an era concerned with the proper socialization of the

individual child and as such, decisions were made wholly on an evaluation of the best

interests of children, variously set out in a religious, and then medicalized, discourse. In

this era, state and non-state actors saw the proper socialization and reform of children

from the lower classes as a legitimate public responsibility.

440

While the Victorian child

was an innocent, the child in juvenile delinquent system was either himself “delinquent”

or potentially so, ie., “neglected”. The delinquent was a threat to the social order and the

system was focused on reforming the child, not only in his or her own best interests but in

the best interests of society as a whole.

Finally, I will argue that relegating legal oversight of the juvenile delinquents

system to lower courts which did not secure nor even prioritize the due process rights of

children and families – indeed some judges such as Ernest Blois was not even legally

trained – was likewise a strategy of power to undermine family autonomy. This is best

exemplified when we compare the jurisprudence emanating from the Supreme Court with

that of the juvenile court. Despite the fact that the families involved in the juvenile

delinquent system were marginalized by social and economic marginalization, they were

still able to bring appeals of juvenile court decisions to the Supreme Court. Between 1926

and 1940 the Supreme Court of Nova Scotia overturned a number of rulings of the juvenile

courts on the basis that the court had failed to protect the liberty interests of children and

families. Interestingly, just as the Supreme Court was beginning to issue judgments

challenging the procedures and decisions of the juvenile court under the Liberty of the

440

Susan E Houston, “The ‘Waifs and Strays’ of a Late Victorian City: Juvenile Delinquents in

Toronto” in Joy Parr ed, Childhood and Family in Canadian History (Toronto: McClelland &

Stewart, 1982) 129 at 130.

148

Subject Act,

441

the juvenile court reports became merely statistical – gone were the very

transparent elaborations on process, ideology and method. By 1926, those families that

had access to the Supreme Court found their due process rights affirmed and the

interventions of the juvenile delinquent regime brought at least to some extent in line with

a liberal legalist framework. We can see then, that, a lack of access to justice was a

particularly effective means of carrying out this “socialized justice,” by relegating families

in poverty to lower courts without the due process protections found in the Superior

Courts.

The Juvenile Delinquents Act, 1908, the Children’s Protection Act, 1912 and the

Creation of the Juvenile Courts

The first uniquely “Nova Scotian” Act and the Act that would come to have the

longest-lasting effect on child protection law in the early years was the Children’s

Protection Act, 1912.

442

Up until this time Nova Scotia had introduced two Acts that were

based on outside precedents and were amended very shortly after their introduction. In

1882, as I detailed in Chapter 2, the Society for the Prevention of Cruelty (the “Society”)

was successful in lobbying government to introduce the Prevention and Punishment of

Wrongs to Children Act (the “1882 Act”)– an Act borrowed from the New York Society.

And then in 1906 adherents to the philosophies of John J. Kelso, the father of the

Children’s Aid Society movement and first superintendent of neglected and dependent

children in Ontario, were successful in advocating for the passing of the Children’s

441

Liberty of the Subject Act RSNS 1923, c 231.

442

An Act to Consolidate and Amend the Law Relating to Juvenile Offenders and the Protection

Of Children, SNS 1912, c 4.

149

Protection Act, 1906

443

(the “1906 Act”) and in creating the first – although short-lived –

Children’s Aid Societies in Nova Scotia.

444

The 1906 Act expanded upon the grounds of cruelty

445

contained in the 1882 Act

and set out in basic form the role of the Children’s Aid Society. The Act provided that if a

443

An Act for the Protection and Reformation of Neglected Children, SNS 1906, c 54 and c 55.

444

It is unknown why the CAS in Halifax at first lasted only a short period, essentially disbanding

in 1909 after having successfully opening a hospital for children. Although it is suggested that there

had been struggles between the CAS and the Society for the Prevention of Cruelty, with the Society

ultimately winning out until the establishment of the Juvenile courts and the close connection

established between the Juvenile courts and the CAS in the Children’s Protection Act, 1912. It would

not be until 1920 when a Children’s Aid Society would be established for Halifax, replacing the

Society for the Prevention of Cruelty. Fitzner, supra note 138 at 49-50; Beverly MacDonald

Dubinsky, Rescued: Early Child Protection Legislation in Nova Scotia (MSW Thesis, Dalhousie

University, Maritime School of Social Work, 1995) [unpublished] at 48.

445

These grounds would be reproduced in the Children’s Protection Act, 1912, s 17:

(a)Who is found begging or receiving alms, or thieving in any place whatsoever, or being in

any shop, saloon, tavern or other places where liquor is sold, or sleeping in open air,

[emphasis added]

(b) Who is found wandering about late hours and not having any home or settled place of

abode or proper guardianship;

by reason of the neglect or drunkenness or other vices of its parent or guardian is suffered

to be growing up without salutary parental control and education, or in circumstances

exposing such child to lead an idle or dissolute life;

(d) Who is found in any house of ill fame or in the company of a reputed prostitute;

(e) Who is found destitute, being an orphan or deserted by its parents, or having a surviving

parent who is undergoing imprisonment for a crime;

(f) Who patronizes or habitually visits any saloon, shop or other place where intoxicating

liquors are sold, or who patronizes or habitually visits any public pool room or gambling

house;

(g) Who habitually uses obscene, profane or indecent language, or is guilty of immoral

conduct in any public place or in or about any school house;

(h) Who is found after the hour of eight o’clock at night in any moving picture theatre,

vaudeville entertainment or theatre of any kind, not accompanied by his parent or guardian

or by some person with the consent of such parent or guardian;

(i) Who is found after the hour of eight o’clock at night loitering about a place of

entertainment and does not give satisfactory account of himself;

(j) Is an habitual truant and whose parent or teacher represents that he is beyond control;

(k) Who is employed in any brewery or any shop, saloon, tavern or other place where

intoxicating liquors are made, bottled or sold;

(l) Who habitually uses obscene, profane or indecent language, or is guilty of immoral

conduct in any place whatsoever;

(m) Who has been unlawfully assaulted or beaten by its parent, or is ill-used or treated with

habitual cruelty and neglect by its parent or by the person with whom it resides;

(n) Who commits any offence punishable with fine or imprisonment or both.

150

child brought before the court is not found to fit under one of the enumerated grounds

constituting a neglected child, and there is “good ground” to believe that the child is guilty

of violating any provision of the Criminal Code of Canada,

446

the judge may prosecute the

child under the criminal code and may sentence the child to be committed to an orphan

asylum, industrial school or other institution for the care of children.

447

The inclusion of

this early precursor to the 1908 Juvenile Delinquents Act

448

(“1908 JDA”) was indicative

of the link between the notion of “juvenile delinquents” and the “neglected child” by the

beginning of the 20th century. Nova Scotia’s first piece of “juvenile delinquency” legislation

had appeared in 1890

449

, however, it did not institute a systematic regime for the treatment

of offenders but merely diverted young offenders from county jails to reformatories. It

wasn’t until shortly after the passing of the 1906 Act that a more comprehensive regime

regulating juvenile delinquency would be instituted in Nova Scotia.

The new, federally enacted 1908 JDA was premised on the notion that youth

criminal justice should be focused on rescuing children from crime as opposed to putting

them through a formal criminal trial and convicting them.

450

Treatment, as opposed to

punishment, was meant to be the central focus of juvenile courts. The Preamble to the Act

provided,

Whereas it is inexpedient that youthful offenders should be classed or dealt with as

ordinary criminals, the welfare of the community demanding that they should on

the contrary be guarded against association with crime and criminals, and should

446

RSC 1906, c 146.

447

Section 8(3).

448

SC 1908, c 40.

449

The Act to Provide for the Reform of Juvenile Offenders, SNS 1890.

450

Joan Sangster, Girl Trouble: Female Delinquency in English Canada (Toronto: Between the

Lines, 2002) at 15.

151

be subjected to such wise care, treatment and control as will tend to check their evil

tendencies and to strengthen their better instincts.

The 1908 JDA applied to children under the age of 16 who violated a provision of

the Criminal Code, any federal or provincial statute, or any by-law or ordinance of a

municipality.

451

The Act created a juvenile court and mandated closed hearings for

delinquents and banned the press from publishing information about those who were

charged and “convicted”.

452

Pursuant to the Act, all trials were to be of a summary nature

before a juvenile court judge.

453

The 1908 JDA specifically provided that trials of juveniles

may be “as informal as the circumstances will permit, consistently with a due regard for

the proper administration of justice.”

454

As will be discussed, the juvenile court in Halifax

was often little concerned with due process and usually juvenile offenders were not even

represented by counsel. The families of juvenile offenders, however, were encouraged to

participate in proceedings and the Act mandated that notice of a hearing of a charge of

delinquency had to be served on a parent or guardian of a child.

455

A probation officer was

attached to the juvenile court in Halifax

456

and indeed, the reports of the juvenile court

judges indicate that probation and the reform of the child through sentencing to an

institution for the purposes of learning a trade were the main focus of the court. Children

were no longer to be incarcerated with adults, even if they were being held awaiting trial.

457

451

Section 2.

452

Section 10.

453

Section 5.

454

Section 14.

455

Section 8.

456

In 1912 Ernest Blois, the first Superintendent of Neglected and Dependent Children was

simultaneously appointed as the Probation Officer for the juvenile court of Halifax.

457

Sections 11 and 12.

152

A child who was found to be a juvenile delinquent could be committed to an

industrial school, a refuge for girls, or to the care of the probation officer attached to the

court or some other person, including to the care of the children’s aid society, who would

then place the child, either in foster homes where available, or in many instances, in a child

caring institution in Halifax.

458

Children could also remain in their home and be visited by

the Probation Officer in the home. The Act provided that the Court was to make an order

as to the settlement of the child, upon the child being ordered to the care of the

superintendent of neglected and dependent children, probation officer or children’s aid

society. If the parents could financially provide for the child, then the father would be

ordered to pay for the child and if the child was found to be a pauper then costs would be

ordered to be paid by the municipality in which the child was determined to have

settlement.

459

The Act provided for the child to be returned for a review after being

placed.

460

A review was to be conducted in an even less formal manner than the original

hearing, and could be dealt with on the report of the probation officer, the secretary of the

CAS or the Superintendent of Neglected and Dependent Children, or the superintendent

of the industrial school.

461

The Act provided that in every case the Judge shall make an

order “which the court is of opinion the child’s own good and the best interests of the

community require.”

462

458

Section 16.

459

Section 16(2).

460

Section 16(4).

461

Section 16(4).

462

Section 16(5).

153

The 1908 JDA was introduced to the House of Commons by a senator from Ontario.

The Senator’s son was head of the Ottawa CAS and a leading child saving advocate

463

and

heavily influenced by Kelso – a symbol of the intertwined nature of child protection and

youth justice work for the decades to come. Kelso espoused the values inherent in the

maternalist ideology of the time and advocated for women remaining in the home and

raising children in order to prevent these children from falling into a life of juvenile

delinquency.

464

He was an early proponent of a more reform minded intervention with

poor families as a way to ameliorate their poverty, as opposed to just the provision of

charitable relief.

465

Kelso is quoted as having said:

It is absolutely useless to give families temporary relief when there are certain

conditions that keep them down and make it impossible for them to become self-

supporting. Improved laws, clean, healthy and remunerative employment, decent

and sanitary homes, moral instruction and play facilities for children, are what the

poor need far more than alms.

466

Kelso advocated that the provision of temporary relief would create dependency

and result in “professional pauperism”.

467

He argued that “pauperism is hereditary.

Children are quick to learn that it is easier to beg than to work and they grow up to continue

the same vicious life as their parents.”

468

In order to stop hereditary pauperism Kelso

developed a maternalist discourse in his thinking that placed the mother squarely at the

center of a morally upright family.

463

Sangster, Girl Trouble, supra note 450 at 14.

464

Jones and Rutman, In the Children’s Aid, supra note 143 at 133.

465

Ibid at 135.

466

Ibid.

467

Ibid at 128.

468

Ibid.

154

Kelso’s maternalist focus on the proper upbringing of children appealed to the

sensibilities of women social reformers at the time. The central place of upright, Christian

motherhood in keeping a proper home and raising respectable children also corresponded

with the work these women were doing with the temperance movement. Intemperance and

pauperism were problems perpetuated by men – it was up to the wives of these men to

secure the home front as a Christian and moral place for their children to grow up. Kelso’s

belief, therefore, was that child welfare was essential not only for the welfare of the poor,

but also for the maintenance of a moral order in society and the prevention of juvenile

delinquency.

What is apparent when looking at both juvenile delinquency and child protection

in the first half of the 20th century, is that there is very little distinction between the child

as “juvenile delinquent” and the “neglected child”. A juvenile delinquent was a child who

had actually been found guilty of having committed a crime – or rather, given the informal

procedures of the Juvenile court, only accused of having committed a crime. A neglected

child was one who had not been accused of committing a crime, but nonetheless was found

in circumstances which were immoral or unfit – circumstances that would eventually give

rise to criminality. Once the juvenile delinquent was placed with the Society, child caring

institution or the Superintendent, the child would then come under provincial jurisdiction

and be dealt with by child protection legislation.

469

Furthermore, child neglect cases – that

is, where a child had not necessarily committed an offence under the criminal code – began

to be heard by juvenile court judges once a juvenile court was established in Halifax in

1911.

470

469

Section 17.

470

The Juvenile court in Halifax was created by the passing of An Act to Establish a Juvenile court

in the Province of Nova Scotia, SNS 1910, c 8.

155

The close connection between the concepts of juvenile delinquent and neglected

child continued to be reinforced by the legal system with the introduction of the Children’s

Protection Act

471

in 1912 (the “1912 Act”). The 1912 Act incorporated the 1908 JDA and

tailored it to Nova Scotia’s particular situation – further organizing the children’s aid

societies, creating a juvenile court for Halifax and the position of the Superintendent of

Neglected and Delinquent Children for Nova Scotia. The 1912 Act provided that where a

child was not a neglected child they would be found to be a juvenile delinquent if they

violated a provision of the Criminal Code.

472

However, most interesting is that the 1912 Act

allowed the juvenile court judge to sentence a neglected child to time at a reformatory

473

–

a further blurring of the lines between juvenile delinquent and neglected child.

The 1912 Act clarified the duties of the Superintendent of Neglected and Dependent

Children

474

who would be appointed by the Governor in Council as an officer of the

Attorney General. The Superintendent was to organize and advise the children’s aid

societies in various parts of the province; visit and inspect reformatories and foster homes

as well as other institutions accepting children; visit adoptive homes of children; keep the

records of the Societies; and prepare an annual report each year and submit it to the

Legislature.

475

The Superintendent also acted as the chief probation officer for juvenile

471

The 1912 Act was enacted as An Act to Consolidate and Amend the Law Relating to Juvenile

Offenders and the Protection Of Children, SNS 1912, c. 4, with the short title, Children’s Protection

Act, 1912.

472

Section 20.

473

Section 21(2). It is noteworthy, however, that by the 1917 Act, the child could not be held in a

reformatory for longer than 6 months without the permission of the Superintendent: s 25(8).

474

Section 9. The title of Superintendent of Neglected and Dependent Children was changed by the

time of the publishing of the in the 1917 Statutes of Nova Scotia to the Superintendent of Neglected

and Delinquent Children, perhaps signaling the dual nature of the role: overseeing both neglected

children and juvenile delinquents.

475

Section 9.

156

delinquents at the juvenile court. It is interesting to note that the first Superintendent was

Ernest Blois, who would also become a judge of the juvenile court. Not only were the lines

between juvenile delinquent and neglected child blurred in the early days of child welfare,

but so were the lines between the court and the executive branch of government.

476

The definition of “neglected child” contained in the 1912 Act was replete with the

language of moral blameworthiness and anxiety over the activity of the poor. The 1912 Act

provided that a neglected child is a child under the age of sixteen:

17(a)Who is found begging or receiving alms, or thieving in any place whatsoever,

or being in any shop, saloon, tavern or other places where liquor is sold, or sleeping

in open air,

(b) Who is found wandering about late hours and not having any home or settled

place of abode or proper guardianship;

or who by reason of the neglect or drunkenness or other vices of its parent or

guardian is suffered to be growing up without salutary parental control and

education, or in circumstances exposing such child to lead an idle or dissolute life;

(d) Who is found in any house of ill fame or in the company of a reputed prostitute;

(e) Who is found destitute, being an orphan or deserted by its parents, or having a

surviving parent who is undergoing imprisonment for a crime;

(f) Who patronizes or habitually visits any saloon, shop or other place where

intoxicating liquors are sold, or who patronizes or habitually visits any public pool

room or gambling house;

(g) Who habitually uses obscene, profane or indecent language, or is guilty of

immoral conduct in any public place or in or about any school house;

(h) Who is found after the hour of eight o’clock at night in any moving picture

theatre, vaudeville entertainment or theatre of any kind, not accompanied by his

parent or guardian or by some person with the consent of such parent or guardian;

476

Section 29 of the 1912 Act provides, “no judge shall be disqualified from acting as such, under

this act, by reason that he is a member of or hold an office in any children’s aid society.”

157

(i) Who is found after the hour of eight o’clock at night loitering about a place of

entertainment and does not give satisfactory account of himself;

(j) Is an habitual truant and whose parent or teacher represents that he is beyond

control;

(k) Who is employed in any brewery or any shop, saloon, tavern or other place

where intoxicating liquors are made, bottled or sold;

(l) Who habitually uses obscene, profane or indecent language, or is guilty of

immoral conduct in any place whatsoever;

(m) Who has been unlawfully assaulted or beaten by its parent, or is ill-used or

treated with habitual cruelty and neglect by its parent or by the person with whom

it resides;

(n) Who commits any offence punishable with fine or imprisonment or both.

What is notable, besides the overt moralizing that comprised the grounds for

finding a child to be neglected, is that the provision respecting abuse and cruelty to

children that had ostensibly spurred on the need for the 1882 Act, took a much less

prominent position within these grounds. Furthermore, the grounds either described a

child who had committed an offence such as theft or “any offence punishable with a fine

or imprisonment or both”

477

or described circumstances which would amount to juvenile

delinquency without actual proof of the child having broken the law, that is, being found

with a prostitute or found in a gambling house or in a tavern, etc. The grounds were also

thinly disguised synonyms for children living in poverty: children begging or receiving

alms, children working and therefore truant from school, children wandering without a

home, and children dwelling with vagrants or otherwise without salutary parental control.

The answer for this child poverty or delinquency or neglect was the same: the child shall

be committed to an industrial school, reformatory, house of industry, boys’ or girls’ home

477

Section 17(n).

158

or orphanage if the child is of the proper age and no foster home is found for the child.

478

The message of the Act was clear: when the family fails to carry out not only the economic,

but also the social role expected of it, this failure provides reason enough for the state to

intervene into the private sphere and ensure that the child will grow up to be a productive

member of society.

The rhetoric that undergirded concern for the neglected child was also present in

the rhetoric that supported the juvenile delinquency reforms of the early 20th century,

evident, for example in a 1909 article on the juvenile delinquents system in the U.S.:

Why is it not just and proper to treat these juvenile offenders, as we deal with the

neglected children, as a wise and merciful father handles his own child whose

errors are not discovered by the authorities? Why is it not the duty of the state,

instead of asking merely whether a boy or a girl has committed a specific offense,

to find out what he is, physically, mentally, morally, and then if it learns that he is

treading the path that leads to criminality, to take him in charge, not so much to

punish as to reform, not to degrade but to uplift, not to crush but to develop, not to

make him a criminal but a worthy citizen. And it is this thought- the thought that

the child who has begun to go wrong, who is incorrigible, who has broken a law or

an ordinance, is to be taken in hand by the state, not as an enemy but as a protector,

as the ultimate guardian, because either the unwillingness or inability of the

natural parents to guide it toward good citizenship has compelled the intervention

of the public authorities; it is this principle, which, to some extent theretofore

applied in Australia and a few American states, was first fully and clearly declared,

in the Act under which the Juvenile court of Cook County, Illinois, was opened in

Chicago, on July in 1899.

479

In Nova Scotia, however, there was another side to concern about the juvenile

delinquent or the neglected child: prevention of future criminals. As historian Michael

Boudreau has documented, the Halifax of the early-20th century was a “law and order

society”.

480

Socio-economic changes at the time saw residents particularly anxious about

478

Section 21(1).

479

Mack, supra note 433 at 107.

480

Michael Boudreau, “Delinquents Often Become Criminals”: Juvenile Delinquency in Halifax,

1918-1935, (2010) XXXIX. 1 Acadiensis 108.

159

the “juvenile delinquent class”.

481

As it was thought at this time that “criminal tendencies

started with the young”, an important partnership was formed between criminal justice

and child protection authorities in the law and order society.

482

However, not all young

were equally represented amongst the juvenile delinquent class.

483

As Rooke and Schnell

have indicated in their study of child saving work in Halifax in the mid-19th century, the

“street boy” problem and the concern over “street arabs” had long been a concern in

Halifax, leading to the opening of the Halifax Industrial School in 1864.

484

While girls were

no doubt a concern of child savers – especially in terms of their sexual morality

485

– boys

of the lower classes in particular comprised the bulk of cases in the juvenile delinquent

regime in Halifax.

486

Around 1918, a campaign arose in Halifax to use the most modern processes to

fight crime including the introduction of finger printing, and the hiring of a policewoman

481

Ibid at 108-109.

482

Ibid.

483

For a discussion of the construction of the “boy problem” in Toronto see Bryan Hogeveen, “’The

Evils with Which We are Called to Grapple’: Elite Reformers, Eugenicists, Environmental

Psychologists and the Construction of Toronto’s Working-Class Boy Problem, 1860-1930” (Spring

2005) 55 Labour 37.

484

Rooke and Schnell, Discarding the Asylum, supra note 143 at 96.

485

In her study on the regulation of juvenile delinquency in Montreal, for example, Tamara Myers

writes that girls were constructed as sex delinquents. See Tamara Myers, “Embodying Delinquency:

Boys’ Bodies, Sexuality and Juvenile Justice History in Early-Twentieth Century Quebec” (2005) 14

J of Hist of Sexuality 383.

486

As a result, the bulk of the analysis of the juvenile court reports will focus on boys as delinquents.

In 1919, for example, there were 225 boys before the court that year and 13 girls. The bulk of the

boys were between the ages of 11-14 (ie., 125). See Nova Scotia, House of Assembly, Office of the

Superintendent of Neglected and Dependent Children, “Sixth Annual Report” in Journals of the

House of Assembly, Appendix No 28 (1919) at 11. This gender breakdown continued into the 1930s,

as Boudreau reports from 1930 to 1935, 90.6% of the total number of delinquents that appeared

before the juvenile court were boys. Boudreau, “Delinquents Often Become Criminals”, supra note

480 at 123.

160

to combat the problem of this juvenile delinquent class.

487

Boudreau writes that the

development of a juvenile justice regime and the opening of the juvenile court was also a

part of this campaign to modernize the fight against crime. The philosophy behind juvenile

delinquency at the time was that delinquents were wayward children who had arrived at

court because of their exposure to criminal ways and unsatisfactory parenting – ironically,

the very grounds that would find a child to be found a neglected child. The neglected child

was merely a precursor to the juvenile delinquent and the juvenile delinquent was merely

a precursor to the criminal – the specter from which society had to be protected.

488

The

juvenile delinquent and child welfare regimes became important, mutually reinforcing

systems for identifying and treating these children. The goal of the system, however, was

not just to protect society from the “boy problem” on Halifax’s streets by segregating these

children in institutions, or perhaps adopting them out to middle class homes, but to

protect the present and future welfare of children and society by reforming them into

upstanding, productive, “normal” citizens.

The Structure of Child Welfare in Halifax in the early Twentieth Century

In order to understand how children in Halifax were identified as either neglected

or delinquent and then placed in the appropriate institution or with the appropriate child

saving society, it is important to understand the structure of the child protection regime in

the Halifax in the early 20th century. The Society for the Prevention of Cruelty continued

to act as a private charity concerned with the well-being of neglected children pursuant to

the Prevention and Punishment of Wrongs to Children Act into the first decades of the

487

Boudreau, ibid at 110.

488

Ibid.

161

20th century. The Society worked in tandem with the many child caring institutions in the

city, such as the Halifax Infant’s Home.

By the time the Juvenile Delinquents Act was passed in 1911 there were a number

of child caring institutions in Halifax and between them and the Society they carried out

the bulk of child protection work in the city. These institutions included the following

children’s homes and reformatories (including their dates of creation):

489

Children’s homes:

College Street Home for Girls (1891)

Protestant Orphan’s Home (1857)

St. Paul’s Home for Girls (1867)

St. Joseph’s Orphanage (1868)

Halifax Infants’ Home (1875)

Home of the Guardian Angel (1888)

Reformatories:

Monastery of the Good Shepherd (for girls – est 1890)

Halifax Industrial School (1864)

St. Patrick’s Home for Boys (1885)

The Halifax Infants’ Home and the Home of the Guardian Angel were maternity homes;

however, children under the age of 5 could also be placed in the homes without their

mothers. Except for the Halifax Infants’ Home, these institutions were largely

denominational – either Catholic or Protestant – and for the most part only served

children of their own particular denominations. The children’s homes were institutions

privately run by their respective religious orders and depended on the charitable giving of

the citizens of the city or upon funds garnered from parents and municipalities as

settlements provided for by the Children’s Protection Acts.

490

On the other hand,

489

Lafferty, The Guardianship of Best Interests, supra note 436 at Appendix III.

490

Lafferty notes that small amounts of funding was provided by the Province to some of these

homes to assist with deferring the cost of extra care occasioned after the Halifax Explosion. As with

Poor Law settlements parents could be made to reimburse child care institutions. Furthermore,

162

reformatories – as quasi penal institutions – were funded by the public purse. By the early

20th century 60% of their public funding was paid by the municipality and 40% was paid

by the Province.

491

Furthermore, as Lafferty reports, these homes also earned funds from

the labour of their inmates.

492

While children could be placed in the children’s home

voluntarily or by the Society or eventually, by the CAS, children could only be placed in

reformatories by order of the stipendiary magistrate, and after 1911, by order of the

Juvenile court. However, as provided for by the Child Protection Acts of the time, the child

need not necessarily be found to be a juvenile delinquent by the Juvenile court – ie., to

have personally committed an offense – but a neglected child against whom a parent had

offended, could also be ordered into a reformatory.

When one considers how private philanthropic work dominated child welfare in

the city in the late 19th and early-20th century, it is easy to see how the creation of the

juvenile court and the Office of the Superintendent of Neglected and Delinquent Children

was an important step in greater provincial involvement in the administration of child

welfare services in the Province. The Provincial Superintendent of Neglected and

Delinquent Children was the first public servant responsible for child welfare in the

Province. Lafferty has described the scope of this office under the charge of the first

Superintendent, Ernest Blois, in the following terms:

Apart from fulfilling other duties outlined by the statute, he acted as the official

CAS agent in those parts of the province that had no established CAS (including

Halifax), performed the duties of probation officer for provincial juvenile

delinquents, administered legislation related to children, conducted annual

inspections of the province’s institutions and foster homes, and “assist[ed] and

instruct[ed]” children’s aid societies across Nova Scotia. Blois’s office was

essentially opened up like an umbrella over the province’s agencies and

institutions such as the Halifax Infants’ Home that accepted unwed mothers garnered fees from

these mothers for their board. Ibid at 93.

491

Ibid at 92.

492

Ibid.

163

institutions; whereas once they had been subject only to the rules and constitutions

laid down by their boards and governors (and, of course, by the provisions of earlier

provincial statutes affecting child protection efforts), they were now required to

accept guidance, leadership, inspection and even rebuke from a provincial

officer.

493

Therefore, not only was the Office an important step in regularizing public support and

oversight over the institutions and Societies, but it assisted in centralizing the work of these

disparate agencies.

The need for organization and centralization became more acute by 1914. The onset

of the First World War in 1914, and then the devastation wrought on the city by the Halifax

Explosion, increased dramatically the number of children in orphanages and infants’

homes as many parents were killed either in service, or by the Explosion itself.

494

The war

and the Halifax Explosion also resulted in the proliferation of private charitable

organizations to address the loss in the city. In 1914 the Social Services Bureau was

developed in the city to help organize some of these efforts.

495

Furthermore, the problem of neglected and delinquent children became such a

pertinent issue for the city that the police department hired policewomen to deal especially

with this pressing social issue.

496

In particular, one study conducted for the Bureau of

Social Hygiene in the U.S. by a woman called Chloe Owings reveals that “Since April, 1917,

women police have been employed by the police department of Halifax. At present there

are 2 women police and 1 matron. The chief concern of the women police are neglected or

493

Ibid at 54.

494

Suzanne Morton, “’To Take an Orphan’: Gender and Family Roles Following the Halifax

Explosion” in Kathryn McPherson et al eds, Gendered Pasts: Historical Essays in Femininity and

Masculinity in Canada (Don Mills: Oxfor University Press, 1999).

495

Miriam Jacobson, A Better Deal for Children: A Half Century of Service (1920-1970) (Halifax:

Children’s Aid Society of Halifax, 1970) at 10.

496

Renee Elise de Gannes, Better Suited to Deal with Women and Children: Pioneer Policewomen

in Halifax, Nova Scotia (Thesis, Dalhousie University, 1999).

164

delinquent children, wayward girls and deserted wives.”

497

As in the other Canadian

jurisdictions covered by Owings in her study, the role of the Halifax policewomen was

essentially that of early social workers. They specialized in dealing with “women’s issues”

including the care of children, prostitution, single mothers, and potentially even domestic

violence and abuse. While euphemistic language typical of the time is used to indicate this

abuse in Owings’s study, she indicates, for example, that in Toronto, the role of

policewomen was to “supervise parks and recreation grounds, public amusement places,

fortune tellers, and handle matters of domestic difficulties which come to the attention of

the police.”

498

In Winnipeg, for example, policewomen were characterized in Owings’s

study as “an asset to the Department where they work in plain clothes. Their work is

particularly useful in matters related to sex offenses.”

499

Therefore, these policewomen

performed the role of ensuring a certain social and moral order as far as women and

children in the city were concerned.

The Children’s Aid Society of Halifax (the “CAS”) would also come to play an

important supporting role to the Superintendent of Neglected and Delinquent Children

and the Juvenile court –however, not until 1920.

500

Even though a CAS was developed in

Halifax in 1906 after a visit from John J. Kelso from Ontario, in the early years of its

development the CAS was not as prominent in child welfare work in the city as the Society.

The CAS was a private agency governed by a Board of Directors populated by private

497

Chloe Owings, Women Police: A Study of the Development and Status of the Women Police

Movement (New York: Frederick H Hitchcock Publisher, 1925) at 62, retrieved from Harvard

University Library Open Collections Program: <http://ocp.hul.harvard.edu/dl/ww/001832910>.

498

Ibid at 60.

499

Ibid at 61

500

Jacobson, A Better Deal for Children, supra note 495 at 10.

165

citizens of Halifax.

501

It would not be until 1920 when the Provincial Superintendent,

Ernest Blois, advocated on behalf of the CAS that they take on a more prominent role in

child welfare work in the city. As Renée Lafferty explains:

The city’s [Society for the Prevention of Cruelty], the institutions and the provincial

office were overwhelmed with cases following the [Halifax Explosion], and the CAS

was envisioned in part as a means of alleviating this workload. Blois himself,

exercising the influence of his office, asked that a separate agency be established,

and for at least the first year of its operation, the mandate of the Halifax CAS was

only to assist the work of the provincial superintendent and the Juvenile court. It

was not until 1925 that a permanent social worker, Gwendolen Lantz, was hired to

run the society [ie., the CAS]’s operations.

502

[citations omitted]

In the first years of its revival after 1920, the Halifax CAS was a small organization,

relying on the two policewomen in Halifax as well as the truant officer in the city to carry

out its work.

503

It would not be until 1922 that it would hire its first social worker.

504

During

the 1920s the CAS continued to rely upon the institutions to take its wards.

505

As Lafferty

has pointed out in her book, unlike other jurisdictions in Canada, Nova Scotia’s institutions

continued to comprise a significant part of the child welfare system of the province, even

into the middle of the century.

506

In particular, these institutions, backed by the support

of the Office of the Superintendent and the work of the juvenile court, undertook the

important work of reforming not just delinquent children, but neglected children as well.

The following section will look closely at the work of reforming children and how the

institutions and social service agencies in the city increasingly came to rely upon the

501

Ibid.

502

Lafferty, supra note 436 at 61-62.

503

Jacobson, supra note 495 at 10.

504

Ibid at 12.

505

Ibid.

506

Lafferty, supra note 436 at 15-16.

166

sciences to shape their work with children. I will argue that even though scientific

explanations were being brought to bear on neglect, delinquency and its treatment, the

historical record reveals that medicalization did not serve to displace moralized decision-

making about the best interests of children, but rather gendered, raced and ableist

assumptions were reproduced in medical terms.

The Socializing Work of the Institutions

While the child caring field was dominated in the first decades of the 20th century

by the denominational institutions – and indeed, they continued to perform a significant

part of child welfare work into the middle of the century – child caring work was not wholly

dominated by a religious discourse. Increasingly, alongside this religious discourse,

members of the child protection system in the city came to accept more scientific causes

and treatments for delinquency and neglect. Furthermore, child protection work in the

first decades of the 20th century in Halifax was beginning its evolution from a field

dominated by philanthropists to a more organized and professionalized corps of social

workers. The central ideology of the private philanthropy movement was that a morally

upright citizen volunteer was needed in order to serve as a “friend” to guide a dependent

family of paupers out of poverty.

507

The growing economic turmoil of the early 20th century

threw these ideas into sharp relief.

508

Entreating the dependent to work no longer offered

them such an obvious way out of pauperism and dependency when work was becoming

increasingly hard to find and work that could be found was ill-paying. Increasingly,

507

Roy Lubove, The Professional Altruist: The Emergence of Social Work as a Career 1880-1930

(Cambridge, MA: Harvard University Press, 1965) at 13.

508

Ibid at 16.

167

scientific explanations were coming to bear upon the field of social work and the work of

child caring institutions.

509

While the CAS would not hire its first professional social worker until 1925, the

institutions in Halifax themselves did employ professional social workers to assist in

placing children in foster and adoptive homes. In the first decades of the 1900s, the Halifax

Infants’ Home hired its first professional social service worker to carry out placement

work.

510

However, it was not just the work of placing children which became

professionalized and more “scientific” in its method; the actual work of reforming children

in the institutions became more reliant on science in its methods. One example was the

growing concern with the problem of “feeble-minded” or “backward” children in the early

20th century in the province. The fields of criminology, psychiatry and social work

converged on the problem of the feeble-minded at this time and alerted human service

professionals to the need for “scientific casework”.

511

As one historian writes:

Widespread public interest in the control of the feeble-minded had important

consequences for social work. The alarm over the menace of the mental defective

alerted social workers to the possibility that a client’s behavior might reflect not an

obstinate reluctance to accept good advice or innate moral perversity, but a

subnormal mentality. The mental test became a significant weapon in the

caseworker’s scientific arsenal.

512

While in Britain a Royal Commission on the Care and Control of the Feebleminded

had been conducted in 1909,

513

it was not until 1916 that a similar study would be

509

Ibid.

510

Lafferty, supra note 436 at 113-114.

511

Lubove, The Professional Altruist, supra note 507 at 66.

512

Ibid at 67.

513

Great Britain Commissions for the Care and Control of the Feeble-Minded, Report of the Royal

Commission on the Care and Control of the Feebleminded (London, 1908).

168

conducted in Nova Scotia with the establishment of a Commission respecting Feeble

Minded Persons in Nova Scotia, and the presentation of the report of the Commission to

the Legislature the following year. The Commission was comprised of the Superintendent

of Education, the Superintendent of Neglected and Dependent Children, and the

Provincial Health Officer. The Report Respecting Feeble Minded in Nova Scotia

514

set out

to systematize the understanding and treatment of the problem of the feebleminded. The

report began by drawing upon the definition of feeble-minded from the Mental Deficiency

Act, England, 1915 as:

Persons in whose case there exists from birth or from an early age mental

defectiveness not amounting to imbecility, yet so pronounced that they require

care, supervision, and control for their own protection or for the protection of

others, or, in the case of children, that they, by reason of such defectiveness, appear

to be permanently incapable of receiving proper benefit from the instruction in

ordinary schools.

515

The Report went on to distinguish the feeble-minded from imbeciles,

516

idiots

517

and moral imbeciles.

518

There were some numbers for the prevalence of idiots from the

1911 census, but the writers suspected that the less readily identifiable and less understood

category of feeble-minded had “escaped the consideration of the census enumerators”.

519

514

Nova Scotia, House of Assembly, Commission Respecting Feeble Minded Persons in Nova Scotia,

“Report Respecting Feeble Minded in Nova Scotia” in in Journals of the House of Assembly,

Appendix No 33 (1917).

515

Ibid at 1.

516

Imbeciles are defined in the report as: “Persons in whose case there exists from birth or from an

early age mental defectiveness not amounting to idiocy, yet so pronounced that they are incapable

of managing themselves or their affairs, or, in the case of children, of being taught to do so.” Ibid.

517

Idiots are defined as: “Persons so deeply defective in mind from birth, or from an early age, as to

be unable to guard themselves against common physical dangers.” Ibid.

518

Moral imbeciles are defined as: “Persons who from an early age display some permanent mental

defect coupled with strong vicious or criminal propensities on which punishment has had little or

no deterrent effect.” Ibid.

519

Ibid at 2.

169

Despite the absence of numbers, the Report confirmed that the significance of the problem

of the feeble-minded was far reaching and concerned not just “the unfortunate individual

but every member of his household, and, to a greater or less extent, every member of the

community.”

520

Apart from their economic impact – these persons were seen to be

unproductive citizens

521

– they created domestic, moral, and social problems. The feeble-

minded in the classroom “influence through suggestion or imitation the more unstable of

the normal minded pupils to their degradation”

522

and feeble-minded women were more

likely to give birth to illegitimate and neglected children, creating for their children a “most

degrading” moral and physical environment.

523

The writers of the Report gave a number of indications how to find this elusive

category of feeble-minded persons. Feeble-mindedness as an inherited condition would be

found in families – 80% of mental deficiency, the Report noted, is inherited.

524

Further,

the report indicated that “Statistics show that the families of the higher grades of the

feeble-minded are larger than the families of normal parents…This of course, has a special

bearing upon the production not only of the feeble minded, but of the closely related

classes – the unfit, the dependent and the potentially criminal.”

525

Psychologists and

psychiatrists could expect that feeblemindedness would be found in large families (no

doubt Catholics in Nova Scotia at the time had larger, in the main, poorer families than

their Protestant counterparts) and where they had found one feeble minded, unfit,

520

Ibid at 3.

521

Ibid.

522

Ibid at 7.

523

Ibid at 4.

524

Ibid at 3.

525

Ibid.

170

dependent or potentially criminal figure, they could search the family and be sure to find

that it was composed of 80% more of the same.

526

The writers of the Report indicated that larger classes of feeble-minded could be

found amongst the poor in almshouses,

527

among illegitimate mothers in the Halifax

Infants’ Home,

528

in industrial schools and reformatories,

529

in prisons,

530

and in asylums

amongst the insane and epileptic.

531

The feeble-minded student had to be sought out in

public schools as they had a devastating effect on the education of those around them.

532

The compiling of statistics in these institutions was very important to the task of seeking

out the feeble-minded. Once their prevalence was established, these departments were no

longer just dealing with individuals but with the populations of these institutions as a

knowable, calculable entity. They could therefore look at the population of the prison or

the maternity home, for example, and predict how many feeble-minded they would find.

This prediction then determined the likelihood of each individual being a member of the

feeble-minded. The capacity for scientific prediction became an important part of both

modern policing and modern social work.

526

Ibid.

527

Ibid.

528

At a prevalence rate of 12.5%. Ibid at 4.

529

At a prevalence rate of approximately 25%-60%. Ibid at 5.

530

While no exact number was provided for the percentage of feeble minded in jails, it was agreed

amongst the experts that there was a great prevalence, especially since “Every imbecile is an

incipient criminal.” Ibid at 6-7.

531

The prevalence rate of the feeble minded amongst the insane and epileptics are reported to be 7

times more than in the normal population. Ibid at 7-8.

532

Ibid at 7.

171

The poor, and particularly poor women, formed a special focus as the feeble-

minded were depicted as more often having illegitimate children or conversely, of being

an illegitimate child. The Report indicated that “the feeble-minded woman is three times

more liable to create children than the feeble minded man”

533

– the implication being that

feeble-minded women (or really all women until one finds out they are not feeble-minded)

should be of especial consideration. Prostitutes and “sexually immoral” women were more

likely to be feeble-minded with proportions ranging from anywhere to 62% to 85.8% of

prostitutes studied being feeble-minded.

534

Although racial characteristics are notably

absent from this Report, it is reasonable to assume that given the visibility of African Nova

Scotian women among the prostitutes in Halifax at this time

535

or otherwise living in

poverty in Nova Scotia, the fact of being African Nova Scotian would provide a greater

likelihood of scrutiny in the search for and control of the feeble-minded.

The discourse that surrounded feeble-mindedness was very much a part of a larger,

Social Darwinist discourse which applied ostensibly scientific and biological explanations

to social problems, resulting in the belief that these social problems were caused not by

overarching social and economic inequality, but by the natural selection and the biological

states of certain types of persons. In order to ensure a strong social and political culture,

weaker types of persons such as the feeble-minded had to be controlled, for fear that they

would reproduce and weaken the society as a whole. While feeble-mindedness as a social

construct, then, served to perpetuate a moral regulation of persons in poverty, it was

533

Ibid at 4.

534

Ibid at 4.

535

Suzanne Morton, “Separate Spheres in a Separate World: African-Nova Scotian Women in late-

19th-Century Halifax County (1993) XXII.2 Acadiensis 61 at 75.

172

couched in more modern, medicalized terms – shedding the more overtly religious

language of philanthropic social reform.

The construct of the feeble-minded individual as the source of a myriad of social

problems gave the fields of law, psychology and importantly, child protection, authority to

find the feeble-minded among the general population and to solve the problems they posed

to society.

536

The concept was very effective for extending the potential reach and power of

the juvenile delinquent regime, the child protection workers, their psychiatrist and the

juvenile court. The final recommendation of the Report on Feeble Mindedness is quite

telling in the role it saw for the juvenile delinquent regime, the schools and hospitals as

places of segregation:

537

There is much variety of opinion as to the method by which the prevalence of

feeble-mindedness may be most effectively reduced. Amongst measures suggested

we may include state regulation of marriage, asexualization of those who are

committed to asylums as insane or feeble minded, or who are convicted of crime,

and the segregation of the feeble minded. In some communities all of these

measures are being given a trial. It appears to be generally conceded that the

method which is not only most effective but which gives the least offence to popular

sentiment is the system of segregation. In connection with many institutions the

effort is made to train children in some line of usefulness, but it is not now regarded

as possible to prepare any considerable proportion of such children for successful

careers outside the institution. As far as the females, at any rate are concerned, it

is now regarded as essential that these should be kept under care at least until the

child-bearing period has passed.

538

Feeblemindedness was associated with pauperism, prostitution, juvenile

delinquency, intemperance, insanity and epilepsy. But as opposed to the vagrancy laws,

the search for the feeble-minded and the accepted social practice of segregation and

536

Lubove, The Professional Altruist, supra note 507 at 67; McLaren, Our Own Master Race, supra

note 439 at 37.

537

The report was compiled by the Superintendent of Education, the Superintendent of Neglected

and Dependent Children, and the Provincial Health Officer.

538

Respecting Feeble Minded Persons in Nova Scotia, supra note 514 at 8.

173

institutionalization allowed state institutions to address these social problems as medical

problems as opposed to economic problems.

539

While sterilization was not openly

undertaken in the institutions in Nova Scotia, eugenicist explanations undergirded much

of the discourse around the feeble-minded.

540

Indeed, segregation and institutionalization

was a socially acceptable means of keeping the feeble-minded from reproducing as there

was little public support for sterilization at the time.

541

In any event, the medicalization of

problems that were once the field of a religious and philanthropic discourse helped to

modernize and professionalize work with children.

This increasing reliance on the predictive and diagnostic expertise of psychiatry

and medicine in the children’s institutions in Halifax resulted in the Office of the

Superintendent hiring a psychiatrist in 1919, Dr. Eliza Brison, to assist the Juvenile court

in testing the intelligence of children in care and to categorizing them accordingly. Dr.

Eliza Brison's reports reveal that she was implementing a classification system based upon

the test for the feeble-minded developed by Dr. Goddard, a renowned expert in the field.

542

539

See, for example, McLaren, Our Own Master Race, supra note 439 at 37.

540

Ibid at 40.

541

Ibid at 43.

542

Dr. Henry H. Goddard, was a psychologist from Vineland, N.J. who was one of the first to use

the psychological test as measure of mental deficiency, as early as 1905 to 1908. He devised his own

classification scheme – ranging from “the idiot” to “the moron” in 1910. He encouraged that the use

of the tests and his classification scheme was to be used by the school inspector to root out

backwardness in institutions such as schools and reformatories. Goddard warned that statistically,

the medical inspector should find “on average one child in every room he visits who is so far behind

in mental development that he needs special recognition, special care and treatment.” However, he

also cautioned that often the medical inspector will not have the time to diagnose deficiency and to

this end “it would be well if the school system itself employed special persons to make these

examinations of mentality, so that the medical inspector could concentrate his time upon those

cases that were reported to him as not being able to do their work in a normal manner.” He

recommended categorizing the children into groups: average, one year below average, two years

below, three years below, etc. thereby allowing the inspector to more efficiently examine the

children and allow for the removal of the most deficient. Goddard warned that while not much can

be done for the feebleminded child – a recognition that the mental defect of “backwardness” is

distinct from feeblemindedness – the school must endeavour to root out and treat the disease of

backwardness. “The Hygiene of the Backward Child” by Henry H. Goddard, Psychological Research,

174

By 1923, Dr. Brison reported that she had examined 306 children: 162 classified as

delinquents; 39 as truants; and 105 as neglected.

543

She employed the following categories

to diagnose the children she saw:

Normal: applies to a person of average intelligence;

Borderline: to a condition bordering on feeble-mindedness;

Moron: to a high-grade feebleminded person;

Imbecile: to a medium grade feeble-minded person;

Idiot: to a low grade feebleminded person.

In Dr. Brison’s actual diagnosis of children, however, she also diagnosed “superior

intelligence”, “dull normal” (ie., backward), “high grade moron” and “low grade moron”.

While she indicated that the scale of diagnosis could range from superior intelligence down

to idiot and then to “10. Constitutional Inferiors; 11. Psychopath; 12. Slight Unbalance, but

not Insane; 13. Insane (Dementia precox.); and 14. Insane” she did not diagnose any of the

children with these categories. In her summary of findings, Dr. Brison reported that “out

of the total number examined for your office there are 38 boys and 41 girls who should be

Training School, Vineland, N.J., as attachment to Nova Scotia, House of Assembly, Office of the

Superintendent of Neglected and Dependent Children, “Third Annual Report” in Journals of the

House of Assembly, Appendix No 28 (1916) at 40.

The attention to the problem of the feebleminded led to an interest in sterilization and eugenics that

would grow into middle part of the 20th century and was informed by Social Darwinist thinking of

the time. Dr. Goddard’s seminal work, the Kallikak Family, for example, was a study of a family

which produced a considerable number of feebleminded members. Goddard’s study of the family

proved that family “stock” was productive of the problem of the feebleminded. Controlling the stock

– or the reproductive ability of the family – was a preventive means of socially controlling for the

feebleminded. Sterilization and eugenics became the focus of serious scientific study for those

interested in the problem of the feebleminded. See also Angus McLaren, Our Own Master Race:

Eugenics in Canada, 1885-1945 (Toronto: McLelland and Stewart, 1990).

543

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Eleventh Annual Report” in Journals of the House of Assembly, Appendix No 28 (1924)

at 43.

175

in a special institution for the care of the mentally deficient. Because of their low grade

mentality and social unfitness, the girls more especially require institutional care.”

544

In the 1923 Annual Report the Superintendent of Neglected and Delinquent

Children reported that “there is a considerable number of children committed to our care,

who cannot be placed in foster homes because of their low mentality or diseased physical

condition or both”

545

and that the care of the feeble-minded was a serious problem for the

CAS. The report of the juvenile court judge for 1923 indicated that:

One of the causes of truancy is undoubtedly feeblemindedness on the part of the

boy. Dr. Brison’s report herein published confirms this view. There are

undoubtedly other causes, and we sometimes question whether the school’s system

meets the needs of the various types of boys. Parents too are much to blame. Some

of them take little or no interest in their children and apparently do not value an

education.

546

Noteworthy is the particular concern to the Superintendent in this 1923 Report for

feeble-mindedness in girls and the need for a home for girls who were found to be feeble-

minded. Because the 1917 Act provided that a child had to be released from the care of the

CAS by the age of 20, feeble-minded girls were being released back to feeble-minded

parents. In particular, the Superintendent recounted three such stories where feeble-

minded girls were released and “had improper sexual relations”, were found to “be unclean

in her habits, indolent and immoral”, or “gave birth to an illegitimate child and lead a very

wild life.”

547

While the problem of feeble-mindedness was increasingly becoming

medicalized, it served to reinforce a sexual regulation of girls and women and reinforced

raced and classed notions of normalcy. While feeble-mindedness meant low intellectual

544

Ibid at 45.

545

Ibid at 33.

546

Ibid at 48.

547

Ibid at 34.

176

function and, as we will see, truancy in boys, in girls it meant a certain sexual

lasciviousness.

548

By 1928, Dr. Clyde Marshall was appointed as Provincial Psychiatrist to assist the

societies in child welfare work and direct the reformatories on appropriate vocational

training for children. Key to protecting society from impoverished, delinquent children,

was to make them productive citizens who would not become a charge on the public

purse.

549

Vocational training was central to the child protection project. In 1928 alone the

psychiatrist examined 533 children, only 35 of whom were examined in connection with

the juvenile court.

550

Dr. Marshall explained in the report that his examinations were for

the purposes of assisting the societies and the courts in determining which children had

“sufficient intelligence and whose personalities were well enough adjusted to get along in

the community. Many normal children were found mingling with the Feebleminded and

Insane and recommendations were made that they be placed in homes.”

551

Dr. Marshall's report reveals that psychiatric knowledge was being utilized to assist

the reformatories in setting their vocational training for delinquent youth to appropriate

levels and according to gendered divisions of labour. Reformatories were provided with a

guide for the vocations of crop raising, woodwork and plain sewing that they could follow

in order to adjust vocational training to the particular intellectual functioning of each child,

548

For a discussion of the “girl problem” in late 19th and early-20th century Canada, see Sangster,

Girl Trouble, supra note 104; Tamara Myers, Caught: Montreal’s Modern Girls and the Law, 1869-

1945 (Toronto: University of Toronto Press, 2006).

549

See Boudreau, “Delinquents Often Become Criminals”, supra note 480 at 108.

550

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Sixteenth Annual Report” in Journals of the House of Assembly, Appendix No 28 (1929)

at 66.

551

Ibid.

177

as assessed by the psychiatrist. As an illustration, the following is a scale provided for

“Plain Sewing” for girls:

Plain Sewing

Mental age of 4. Elementary sewing and various stitches

Mental age of 5. Sewing outline stitch following pattern.

Mental age of 7. Plain and Italian hemstitching. Operating the household

sewing machine.

Mental age of 8. Making dresses cut out by others.

Mental age of 9. Cutting out and making not too complicated dresses.

Operating a foot power machine.

552

In the 1928 Annual Report, Dr. Marshall reported on the work he had undertaken

for the juvenile court during that year. Delinquents were examined for “abnormalities such

as over development, excessive sexual characteristics, foci of irritation, etc.” through

physical examination, after which intelligence testing would be undertaken.

553

Finally, Dr.

Marshall reported that after physical and intelligence testing, he would administer a

personality test on the child and analyze the child’s social history including home

influences, other environmental factors, “his habits, previous experiences, mental

attitudes and conflicts.”

554

He reported that one of the most frequent problems confronted

by the juvenile courts was that of the truant child. He gave an illustration of one case of a

truant child where intelligence testing had determined that the child was functioning

intellectually below his age and below the grade he was placed in. After being placed in the

appropriate grade he flourished and was no longer truant. The case exemplified that,

through proper scientific assessment and analysis, the causes of delinquency could be

552

Ibid at 69.

553

Ibid at 70.

554

Ibid.

178

addressed and remedied. Once the child attended school on a regular basis he would no

longer be found truant and therefore no longer be labeled a delinquent. In his annual

report for 1928, Dr. Marshall advocated the development of a behaviour clinic to give these

cases of delinquency the attention they truly needed.

555

Psychiatric knowledge not only integrated assumptions about class, gender,

sexuality and ability into its systems of categorization and treatment of children, but most

disturbingly, child development theory at the time was informed by racist and colonial

systems of thought imported into its ostensibly objective and scientific work. As Renée

Lafferty has detailed in her book on institutional care of children in Nova Scotia in the

early part of the century, “recapitulation theory” undergirded the child development work

of the institutions in this era. Lafferty describes recapitulation theory:

This theory was most articulately expounded by influential American psychologist

and pedagogical theorist G. Stanley Hall, and through his work and that of his

supporters, it became axiomatic in child study circles in the late nineteenth and

early twentieth century. To a certain extent, recapitulation identified all children

with savagery. Importantly, however, it was believed that when a child/savage was

consciously aided and trained, he or she could develop into the highest expression

of human evolutionary progress. It was equally understood that only those races

whose members were already evolved could claim the full benefits of recapitulation

for their children. As nonwhites were considered less evolutionarily advanced, their

children could be expected to develop only as far as their race itself developed.

Therefore, although the intelligence of black children was often considered equal

to that of white children, they advanced no further. Their parents were generally

believed to be “roughly as intelligent as Anglo-Saxon children, precisely because

their intellectual development stopped in the evolutionary state corresponding to

white childhood.”

556

This social Darwinist interpretation of child development theory would prove to

have devastating effects on the lives of children in Nova Scotia’s two racialized child caring

institutions: the Nova Scotia Home for Colored Children and the Indian Residential School

at Shubenacadie. It is worth noting that the Home for Colored Children, for example, was

555

Ibid.

556

Lafferty, supra note 436 at 71.

179

initially erected at the behest of the African Nova Scotian community. The creation of the

Home at the outset, was not, as some may assume, solely a deliberate plan of social control

by a white state to isolate and control African Nova Scotian children. Lafferty has written

most recently about the political and social ideals that lead to the opening of the institution

in 1921:

[T]he opening of this institution represents a significant elaboration of the

tendency to segregate children according to religious affiliation, which was so

fundamental to the province’s early welfare services. However, the home was not

simply foisted upon the province’s black population by white caregivers interested

in maintaining whites-only orphanages (although this motive certainly existed). It

also emerged from within the black community itself as an expression of ethnic

pride. The realities of racial tensions in the city and province and the visible

preference for institutional modes of child rescue made the home a necessary

addition to the province, but so did the social, spiritual, and political aspirations of

the black community’s leaders. The local circumstances and decisions that led to

the founding of the home reveal both this racial tension and the deeply racial

understanding of civilization and childhood that was so ubiquitous at the turn of

the century in Halifax and elsewhere.

557

Besides notions of pride and “racial uplift”, Lafferty has written that the reasons

behind the black community’s insistence on the development of a home for colored

children was the fact that many white homes would not take non-white children and they

were often found in county poor farms and asylums.

558

The African Nova Scotian

community desired the same modern method of child protection as was available for white

communities at the time.

557

Ibid at 64.

558

Ibid at 66. Lafferty also points to Halifax CAS concerns from 1928 that it characterized in these

terms: a “’serious community problem’ [that] was created by the ‘negro child and the negro

unmarried mother” due to a lack of support for unmarried mothers in institutions such as the

Halifax Infants’ Home. Lafferty explains, ibid at 126-127:

Despite earlier claims by the Halifax Infants’ Home that black mothers and children were

welcome, the CAS declared that “no institution would admit a negro baby who is under two

years of age.” In these cases (the CAS report noted twenty-two children and fifteen

mothers), the women “returned usually to their own homes which, in the opinion of the

CAS director, provided little in moral or physical care.” [citations omitted]

180

The creation of the home, however, also corresponded to wider society’s wish to

keep black children segregated from white children – African Nova Scotians had for some

time been ghettoized in Nova Scotia.

559

The Home for Colored Children was set back from

the residential areas of Preston, Nova Scotia. While initially the idea was that a home set

in the country would provide a more “natural” and “wholesome” country setting for the

children, its location resulted in the children being segregated from their wider

community. This segregation would eventually prove to result in a lack of transparency

over life in the Home – allowing abuse and poor living conditions to proliferate

unchecked.

560

Furthermore, segregation of black children from white homes assisted in

the perpetuation of the ideas of the time that a proper and moral childhood was a white

childhood. The practice of diagnosing, categorizing and segregating children into specific

institutions based upon their particular needs in child welfare practice in Nova Scotia at

the time gave the illusion that the segregation of black children was a response to their own

particular needs – and not a desire for their segregation in society as a whole. Just as

feeble-minded children were diagnosed, classified as feeble-minded and segregated “for

their own good,” so the segregation of African Nova Scotian children fed into similar ideas

of specialized reform.

The same social Darwinist thinking similarly informed the work of federal and

religious institutions in the development and maintenance of the Indian Residential

School system in Canada. The residential school system had begun in Canada in the late

19th century and in this sense the opening of the Indian Residential School at

559

Ibid.

560

Jane Armstrong, “Breaking the Silence: Stories of Violence and Abuse at a Halifax Home for

Black Children Spur Calls for an Inquiry”, Maclean’s (5 November 2012) 19.

181

Shubenacadie, Nova Scotia in 1930 was a late addition to the system.

561

By the time the

school was built, the Indian residential school system was firmly established with fully

developed procedures, rationales and curricula. The rationale for the development of the

residential school system was to civilize and socialize the “savage” Indian by removing

children from their home into schools, where, by 1922, they would stay for 10 months of

the year.

562

As the creation and regulation of the legal category of “Status Indian” was

federal jurisdiction, children were removed to residential schools by Indian Agents

established under the Indian Act.

As in other residential schools, children at Shubenacadie were not allowed to speak

the Mi’kmaq language nor were they allowed to practice or display their culture. Accounts

of life in the school by Isabelle Knockwood, for example, indicate that the children were

given numbers and clothes with black and white vertical stripes (which she likens to prison

garb) and their hair was cut. Praying and attending mass were mandatory as were daily

exercises.

563

Children were taught strict discipline and were made to learn not only

academics which would be useful to the larger white society, but similar to the children in

the provincial system of reformatories, child caring institutions and industrial schools,

they were made to learn a trade conducive to their gender, class and level of “civilization”.

As with African Nova Scotian children, it was expected that they would only progress so

far given the circumstances of their race.

564

561

Chris Benjamin, Indian School Road: Legacies of the Shubenacadie Residential School

(Halifax: Nimbus Publishing, 2014) at 43.

562

John Sheridan Milloy, A National Crime: The Canadian Government and the Residential

School System, 1879 to 1986 (Winnipeg: University of Manitoba Press, 1999) at 26.

563

Isabelle Knockwood, Out of the Depths: The Experiences of Mi’kmaw Children at the Indian

Residential School in Shubenacadie, Nova Scotia (Lockeport, NS: Roseway, 2001).

564

Milloy, A National Crime, supra note 562 at 26.

182

In his book on the residential school system, John Sheridan Milloy quotes J.A.

Macrae, the Department of Indian Affairs Inspector of Schools for the Northwest, in

language predicated upon a social Darwinist logic:

The circumstances of Indian existence prevents him from following that course of

evolution which has produced from the barbarian of the past the civilized man of

today. It is not possible for him to be allowed to slowly pass through successive

stages, from pastoral to agricultural life and from an agricultural one, to one of

manufacturing, commerce or trade as we have done. He has been called upon

suddenly and without warning to enter upon a new existence. Without the

assistance of Government, he must have failed and perished miserably and he

would have died hard entailing expense and disgrace upon the Country.

565

In order to ensure that Indian children were sufficiently socialized and civilized,

they had to be removed from the uncivilizing influences of their parents and communities

and taught the ways to be productive in the modern world of “manufacturing, commerce

or trade.” While both the Nova Scotia Home for Colored Children and the Indian

Residential School were two instances of the literal institutionalization of racist and

colonial policies to socialize children to become more civilized, these institutions can still

be seen to be a part of the system of child caring institutions that emerged in Nova Scotia

in the late 19th century. As Milloy has commented, the residential schools “were part of a

network of institutions meant to be servants ministering to industrial society’s need for

lawfulness, labour and security of property”,

566

of which Nova Scotia’s child caring

institutions were also a part. However, correction, discipline and finally, coercion, became

an integral part in dealing with children who it was believed represented man in his more

primitive state of wildness and savagery.

567

The isolation of both the Nova Scotia Home for

Colored Children and the Shubenacadie School, both physically, and in the hearts and

565

Ibid at 27.

566

Ibid at 33.

567

Benjamin, Indian School Road, supra note 561 at 99.

183

minds of mainstream Nova Scotians, meant the abuses committed against those children

went unseen and unaddressed.

Therefore, while child development was becoming increasingly medicalized in

Nova Scotia’s child caring institutions in the early 20th century, this medical knowledge of

child development was also dependent upon, and served to further raced, colonial,

gendered, sexualized, ableist and classed power. These overarching power relations in

society were not challenged in the reform of children, but rather they were drawn upon

and reinforced. The ideal citizen in whose image they were reformed, was a white, middle-

class, able-bodied citizen. The child exposed to an environment which was not conducive

to this ideal was neglected and potentially delinquent. Children from poor and racialized

families were from the outset targeted with suspicions of neglect and delinquency.

568

These

families would accordingly receive special attention from both state and non-state actors

concerned with child protection: teachers, truancy officers, police, philanthropic

volunteers, and denominational personnel. It is important to note, however, that the

system of institutions was seen at the time as a great improvement upon the Poor House

method of providing relief to children in poverty. Low-income families would draw upon

the services of the institutions in order to improve their quality of life and the quality of

life of their children.

569

Unwed and other poor mothers would voluntarily use the services

of denominational child caring institutions like the Jost Mission,

570

the Halifax Infants

568

Milloy, supra note 562.

569

See, for example, Sara Posen, “Examining Policy from the ‘Bottom up’: The Relationship between

Parents, Children and Managers at the Toronto Boys' Home, 1859-1920” in Lori Chambers and

Edgar-Andre Montigny eds, Family Matters: Papers in Post-Confederation Canadian Family

History (Toronto: Canadian Scholar’s Press Inc, 1998).

570

See Simmons, “Helping the Poorer Sisters”, supra note 420.

184

Home and the Home of the Guardian Angel.

571

It was similarly not always the case that the

child protection regime would have to forcibly remove the children from the home.

However, placement with a child caring institution, as discussed in the previous

chapter, brought with it a dangerous proposition for the integrity of the family: permanent

removal of the child. Most disturbingly, institutionalization proved to be a dangerous

strategy for children. We are only now coming to grasp the extent of the pain and abuse

suffered by the children that were placed in the care of these institutions.

572

We may never

fully grasp the cultural, political and social effects of the ideas developed and disseminated

by the system. However, rather than providing a check on state action and protecting the

fundamental human rights of the children in the institutions, the juvenile courts

encouraged the scientific classification of these children and the medicalization of their

reform. In the texts of the juvenile courts we can begin to see how legal knowledge of harm

to children – and consequently, the best interests of children – became tightly bound with

medical knowledge of child development.

Socializing Justice: The Role of the Juvenile Court

In Chapter 2 we saw how the Acts passed in the late 19th century began to legislate

a sphere of childhood and to regulate this sphere both within the family and in society as

571

Suzanne Morton, “Nova Scotia and Its Unmarried Mothers, 1945-1975” in Nancy Christie and

Michael Gauvreau, eds, Mapping the Margins: The Family and Social Discipline in Canada, 1700

to 1975 (Montreal: McGill University Press, 2004) at 335. It is important to note, however, that even

though the Halifax Infants’ home indicated that it did take African Nova Scotian children, by 1928

the Halifax CAS was pointing to the absence of support by the homes for these children and African

Nova Scotian unwed mothers. See Lafferty, supra note 436 at 127.

572

Truth and Reconciliation Commission of Canada, The Survivors Speak: A Report of the Truth

and Reconciliation Commission of Canada (Ottawa: Truth and Reconciliation Commission of

Canada, 2015), online: TRC Canada

<http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Survivors_Speak_2015_05_30_

web_o.pdf>; in June 2015 the Government of Nova Scotia announced a Restorative Inquiry into

the Nova Scotia Home for Colored Children, online: Restorative Inquiry

<http://restorativeinquiry.ca/restorative-inquiry>.

185

a whole. The introduction of juvenile delinquent legislation was a further development of

this regulation of childhood and it marks a move from the use of criminal to probationary

sanctions. These reforms were introduced at the beginning of the 20th century in the name

of child protection and prevention of cruelty against children. Subjecting children to the

same conditions as adults in penitentiaries was just as cruel as subjecting children to the

same conditions in the Poor House. The new juvenile delinquent legislation also

introduced Juvenile courts which marked a change in the judicial enforcement of child

protection legislation.

The Prevention and Punishment of Wrongs to Children Act of 1882, was a product

of criminal and philanthropic interventions and was enforced by the criminal apparatus of

the stipendiary magistrate. The job of the stipendiary magistrate was to adjudicate upon

whether or not the parent had committed the quasi criminal act of neglecting their child.

In re Mahoney,

573

once the stipendiary magistrate had proclaimed the guilt of the parent,

the magistrate would sentence to possible incarceration, not the parent, but the child,

based upon the principle of the welfare of the child. The parents’ sentence was the loss of

custody of their child, or having to pay a fine. Once the magistrate established that a wrong

against the child had been committed, his role with regard to the welfare of the child was

a limited one in that would merely see him sentence the child to a particular home for a

particular amount of time or place the child in the care of the Society for the Prevention of

Cruelty. It would be the home or Society that would decide what to do with the child.

With the introduction of the juvenile courts, however, and in particular, ideas about

probationary and “socializing justice” a more concerted intervention with the child was

undertaken on behalf of the courts and the experts associated with the court. The juvenile

courts as specialist courts were meant to develop specialist knowledge about children,

573

(1892) 24 NSR 86.

186

about child delinquency and neglect, and about working with children to reform them and

create productive citizens who would not become a charge on the public purse. The early

years of the juvenile court saw the use of the older Victorian discourse of cruelty to children

to create, understand and solve the problem of neglected and delinquent children. The

Kelso-esque discourse of maternalism and conservative Christian moralizing are present

in the juvenile court reports of Judge Wallace, for example, the first juvenile court judge

in Halifax.

The concept of intervening where the family failed to provide for a Christian home

for the proper maternal care of children was a central preoccupation of the juvenile court

in these early years. Little concerned with the proportionality of intervening and sending

a child to a reformatory for offences such as truancy – the most pervasive problem of the

Juvenile court at the time

574

– the goal of the juvenile court was to intervene and to reform

the child, whatever the offence that had been committed. And indeed, in the case of

neglected children, who could receive the same reformatory treatment as delinquents, no

offence had been committed at all. Even where the delinquent was convicted of being a

“truant” these status offences involved little in the way of a crime as we know it today. The

importance of having the neglected child before the Court was to stop the child from

becoming a “future delinquent”,

575

and to ensure both the neglected child and the

delinquent child had a good Christian upbringing, thereby safeguarding society against the

future criminality of children in poverty.

The juvenile court as a probationary court was very informal and had little by way

of procedure to ensure the due process rights of the children or their families. Juvenile

574

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Seventh Annual Report” in Journals of the House of Assembly, Appendix No. 28 (1920)

at 10-11. Out of 238 cases of delinquents before the courts, 76 of those were for the offence of

truancy.

575

Stephen Pfohl, “The Discovery of Child Abuse” (February 1977) 24:3 Social Problems 310 at 314.

187

court judges spoke not in a classical legal language, but at the beginning, in a

moral/religious language and later in a more “scientific” psycho-legal language emerging

from the field of social work. As has been observed of juvenile courts in other jurisdictions,

the juvenile court in Halifax was becoming a site for socialized justice: its role was largely

to legitimate the interventions of non-legal personnel to address delinquency and neglect

– that is, to solve a larger social problem. These non-legal personnel included a mix of

denominational personnel, charitable volunteers, social workers and medical personnel.

576

The term “socialized justice” originated with American Legal Realist

577

Roscoe Pound and,

as Dorothy Chunn explains, was characterized by three distinct features:

[A]n emphasis on individualized treatment of the deviant, dependent, and

potentially marginal; a growing reliance on non-lawyer ‘experts’ and

individualizing devices such as juvenile and domestic-relations courts to design

and implement treatment; and ‘a continually increasing resort to…administrative

methods.’ The overall objective of socialized justice was ‘to maintain the general

security through prevention and maintain the individual life through

rehabilitation.

578

In the field of law and legal theory, the 1920s and 30s saw the expansion of legal

realist thinking and the “sociological jurisprudence” movement in legal thought. Critical

of classical liberalism, the realists exhorted legal experts and academics to adopt a view of

law that understood the legal system as an embedded, as opposed to a hermetic, system of

thought and practice.

579

Liberal legalism with its insistence on due process and patrolling

576

See Dorothy Chunn, From Punishment to Doing Good: Family Courts and Socialized Justice in

Ontario 1880-1940 (Toronto: University of Toronto Press, 1992).

577

The legal realists believed that law could only effectively work upon society if it brought other

knowledges such as psychology and economics into legal understanding. Counter to the work of the

legal formalists, legal realists believed in the importance of social context for adjudicating upon

disputes and in interpreting the effects of legislation on society.

578

Ibid at 4.

579

Ibid.

188

the negative liberty of the individual, maintained too sharp a line between the public and

private realms.

580

Law conceived as a bulwark against state action could do little to address

the mounting social problems of the time which were caused by the First World War,

industrialization, and finally, the Depression.

Legal realists believed that in order for law to act upon society in a progressive way,

legal experts had to become familiar with the fields of psychiatry, psychology, medicine,

sociology, and social work.

581

Legal regulation was more effective if it was based not upon

“legal prohibition/punishment” but on “normalization and social control”.

582

Dorothy

Chunn, in her book, From Punishment to Doing Good: Family Courts and Socialized

Justice in Ontario 1880-1940, explains how this normalizing justice was instituted in

Ontario:

The heart of the emergent normalization grid, however, was not the institutions,

but rather, the numerous community-based, individualized regulatory

mechanisms of ‘social control,’ including juvenile and family courts, probation and

parole, that operated in tandem with schools, private social agencies, and the

police.

583

While legal realism would have its heyday in mainstream academic legal thought

in the 1920s and 30s, we can see that the experiment of sociological justice had already

begun in the institution of juvenile delinquent regimes across Britain and North America

early in the century. The introduction of the juvenile delinquency regime meant that the

criminal regime of the police, stipendiary magistrates, and lawyers was displaced in the

580

See dissent of Oliver Wendell Holmes in Lochner v New York (1905), 198 US 45; Robert L Hale,

“Coercion and Distribution in a Supposedly Non-Coercive State” (1923) 38.3 Pol Sci Q 470.

581

See for example, Roscoe Pound, “Sociology of Law and Sociological Jurisprudence” (1943) 5 Univ

Toronto LJ 1; David Kennedy, The Canon of American Legal Thought (Princeton: Princeton

University Press, 2006).

582

Chunn, From Punishment to Doing Good, supra note 576 at 19.

583

Ibid.

189

lower courts by probation officers, social workers, psychiatrists and juvenile court judges

who were attributed with special knowledge of the needs of children.

The normalization project in which these child specialists were increasingly

becoming expert was to be the central focus of family and juvenile courts. Prevention and

reform, as opposed to an after-the-fact trying of the evidence, would become their

hallmark.

584

In the early years of the juvenile court reports we see the religious influence

of the denominational institutions in the decision-making of the juvenile court judges.

However, with the increasing attention to science in the institutions we begin to see a

trickle down of scientific thought into the Court reports. The following excerpt from an

article published in 1909 on juvenile courts is instructive for how this notion of socializing

justice – the marriage of legal and psychological expertise – was meant to be carried out

in the juvenile courts:

The problem for determination by the judge is not, Has this boy or girl committed

a specific wrong, but What is he, how has he become what he is, and what had best

be done in his interest and in the interest of the state to save him from a downward

career. It is apparent at once that the ordinary legal evidence in a criminal court is

not the sort of evidence to be heard in such a proceeding. A thorough investigation,

usually made by the probation officer, will give the court much information bearing

on the heredity and environment of the child. This, of course, will be supplemented

in every possible way; but this alone is not enough. The physical and mental

condition of the child must be known, for the relation between physical defects and

criminality is very close. It is, therefore, of the utmost importance that there be

attached to the court, as has been done in a few cities, a child study department,

where every child, before hearing, shall be subjected to a thorough psycho-physical

examination. In hundreds of cases the discovery and remedy of defective eyesight

or hearing or some slight surgical operation will effectuate a complete change in

the character of the lad. The child who must be brought into court should, of course,

be made to know that he is face to face with the power of the state, but he should at

the same time, and more emphatically, be made to feel that he is the object of its

care and solicitude. The ordinary trappings of the court-room are out of place in

such hearings. The judge on a bench, looking down upon the boy standing at the

bar, can never evoke a proper sympathetic spirit. Seated at a desk, with the child at

his side, where he can on occasion put his arm around his shoulder and draw the

lad to him, the judge, while losing none of his judicial dignity, will gain immensely

in the effectiveness of his work.

585

[emphasis added]

584

Ibid at 4.

585

Mack, supra note 433 at 119 – 120.

190

The juvenile court reports show how the law served to impose upon society the

psycho-medical knowledge developing in the institutions and how the court as a

“probationary”, specialist court, was able to act outside of any regime of rights. Because

cases prosecuted under the 1912 Act were not reported unless appealed (and even then

there is no record of appealed cases), these juvenile court judicial reports are some of the

only evidence we have of how the 1912 Act was interpreted. These early reports

demonstrate the emphasis on the moral upbringing of children and the moralizing

discourse of the undeserving poor. From these reports we can see that juvenile delinquents

as opposed to neglected children comprised the majority of cases in the court.

Given the close connection and overlapping definitions of neglected child and

juvenile delinquent, one can only speculate that the moral panic over juvenile

delinquents

586

may have led the court to emphasize the “delinquent” aspect of each

offender over the ubiquitous “neglected” aspect of each “delinquent’s” upbringing. What

is also clear from these early reports is that the juvenile court saw its work more in terms

of an extension of the reformatory work of the institutions than as a protector of children’s

rights or family privacy. Procedures in the Court were quite informal. While the Act

permitted witnesses to be called,

587

there was little trying of evidence,

588

if any, and it

appears that there was little in terms of appeal

589

from the order of the juvenile court judge.

586

Boudreau, “Delinquents Often Become Criminals”, supra note 480 at 108.

587

Section 40.

588

See discussion below on juvenile courts.

589

As will be discussed in the next chapter, appeals of the Juvenile court decisions tended to come

by way of an application under the Liberty of the Subject Act RSNS 1923, c 231 – an application

akin to a constitutional challenge, today.

191

The first report by Ernest Blois, the first Superintendent of Neglected and

Delinquent Children, was submitted to the Legislature in 1914, covering the events of the

calendar year 1913. The Superintendent reported that Children’s Aid Societies had been

organized under the provisions of the new 1912 Act in Springhill, Windsor, Wolfville,

Yarmouth, Amherst and New Glasgow. The Superintendent also reported that the Society

for the Prevention of Cruelty had also been approved as a Children’s Aid Society in

Halifax.

590

The report contained smaller reports from the heads of the various Children’s

Aid Societies as well as statistics on the various institutions in the province charged with

the care of children. Statistics included how many children were in each institution,

information about the physical structure of the institution, and information about the

income and expenditures of the institutions.

591

The statistics also reported on how many

of the children were crippled, feebleminded, sickly, how many died and how many were

attending school.

592

The annual report included statistics on how the children’s aid

societies disposed of cases of children brought into their care. Statistics compiled on the

various institutions charged with the care of children reveal that in 1913, corporal

punishment was used by the majority of institutions and solitary confinement was used as

a method of punishment in a number of institutions.

593

As an introduction to the work of child protection and the juvenile court, the first

Annual Report of the Superintendent of Neglected and Delinquent Children contained a

wealth of information as to what the juvenile delinquent regime saw as their role in society.

The reports evidence a preoccupation with poverty and neglect as a prelude to delinquency

590

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “First Annual Report” in Journals of the House of Assembly, Appendix No 28 (1914) at 1.

591

Ibid at 12-17.

592

Ibid.

593

Ibid.

192

and the role of both child welfare workers and the juvenile court in ensuring that the child

is made a productive citizen. The following is an excerpt from the first report that appears

to be a clipping from promotional material on children’s aid at the time:

If you believe that a child living in squalid, filthy manner, without sufficient food

and clothing, hearing vile language used by its parents, seeing its parents fighting,

quarrelling, and drinking; and growing up without religious instruction, and

secular education, has not a fair chance of becoming a useful citizen; and if you

believe that such a child is very likely to become a delinquent – a menace to society

- and if you believe that a child who spends its early life amid such surroundings is

almost sure to develop into a poorer type of citizen than the well born and bred

child; if, I say, you believe these things, get busy. Join the child welfare movement.

Help by voice, purse, and labor, every movement designed to better the child life of

the nation.

594

It is clear from the first report of the juvenile court judge of Halifax that the role of

the Juvenile court at that time was not to act as a neutral arbiter of rights, securing the

liberty of the child and the family, but rather as a “remedial agency” charged with

prevention and treatment. The juvenile court, created under the 1908 JDA was meant to

be a court heavily reliant on the probation system and informal in its procedure. The

“probation system” as contemplated by the work of the juvenile court was actually closer

to current child protection practices than what is today understood by probation. The

following is an excerpt on what constituted probation in the juvenile court in the early

years of the court:

The only probation worth considering is that which works a change in the child’s

life, so that it grows to be a healthy, normal, member of society. In order that this

may be accomplished there must be something more than formal visits between

child and officer. The probation officer must become a controlling influence in the

child’s life: the home must be visited; the family life studied; the child’s history

learned; its physical and mental condition determined; the child’s environment

must be considered. It is absolutely necessary that the probation officer should

594

Ibid at 24.

193

have a complete plan of the child’s life. The good will and cooperation of the parents

and the complete confidence of the child must be secured.

595

The introductory paragraphs from Judge Wallace’s report are particularly enlightening as

to the close connection between the Court’s work and the work of the Society, not to

mention the lack of procedural safeguards at the court:

The Juvenile court for the city of Halifax has been in existence since February 1911.

Its aim has been to search out the underlying causes of juvenile delinquency and to

supply preventative measures. It has availed itself of the probation system, and,

wherever possible has tried to prevent children from reaching a condition which

would necessitate their being formally dealt with by the Court. The ultimate success

of this remedial agency depends more on the number of children kept out of court

than brought into it.

The procedure often begins before any offence has been committed. When it is

reported that a boy or girl is inclined to be wayward, or is being brought up without

salutary parental control, the Superintendent of Neglected and Delinquent

Children, who is an officer of the court, investigates the report, confers with the

parents of the boy or girl and, often, by such action, renders unnecessary the

summoning of the boy or girl or parents. In some cases an appropriate admonition

to the delinquent or the parents is sufficient….

The proceedings of the Court are not reported in the press, and care is taken, where

children are “brought before the Court” to exclude anything like the appearance of

criminal procedure and terminology. The boy or girl is not formally asked whether

he or she is “guilty or not guilty” but is encouraged to tell the truth, and, as a rule,

when the delinquent is thus treated, the particular fault is admitted. Sometimes

counsel appear on behalf of the children or their parents, and it is gratifying to

report that counsel in such cases invariably have co-operated with the Court in

conducting the inquiry absolutely free from any technicalities, and in accordance

with the policy of the Court not to hold “trials” but earnest conferences concerning

the child’s condition and future welfare.

596

From Judge Wallace’s description and from descriptions contained in other reports

it is evident that the Juvenile court had little in the way of formal processes. One

595

Ibid at 20.

596

Ibid at 30.

194

description written in 1915 stated that there were no formal pleadings in court and lawyers

were rarely present.

597

Judge Wallace was clear as to what he saw as the root of juvenile delinquency:

poverty, intemperance and the lack of religious education. He reported that out of 480

cases tried by the Court since its inception in February 1911, 75% of those cases were due

to “defective home conditions involving, as a rule, criminal carelessness or moral

obtuseness of the parent.”

598

While Judge Wallace recognized that, “In some instances they

are the product of social conditions for the maintenance of which municipalities are

responsible” he ultimately concluded that “[in] the vast majority of cases the parents are

to blame.”

599

Interestingly, we see in this report a recognition of the condition of “feeble-

mindedness” and physical and mental defects as the cause behind delinquency – however,

only in the minority of cases.

600

The reports of the juvenile court judge from the Annual Reports to the Legislature

are replete with these speculations as to the cause of delinquency. These lower courts saw

their roles not simply in terms of adjudicating upon the presence or absence of the grounds

to find a child to be neglected or delinquent, but rather, their role was to articulate the

causes of this neglect or delinquency and to set out an appropriate remedy. The causes for

neglect and delinquency included: the absence of discipline in the home;

601

the failure of

597

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Third Annual Report” in Journals of the House of Assembly, Appendix No 28 (1916) at

38.

598

Ibid at 40-43.

599

Ibid at 30.

600

Ibid at 32.

601

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Second Annual Report” in Journals of the House of Assembly, Appendix No 28 (1915) at

31.

195

the parent to properly chastise the child;

602

the failure of the wife to keep a proper home;

603

mental defects;

604

husbands who were wife deserters, professional criminals or habitual

drunkards;

605

and spoiled children.

606

Even though these “causes” of delinquency, which

dominate the early reports of the Juvenile court, are couched in moralistic terms, the

hallmarks of poverty are quite clear. Judge Wallace is quite open in these reports that the

greatest problem facing the Court is child poverty – his analysis of the cause of poverty,

however, is not overarching socio-economic conditions, but a failure of parental

responsibility. A particularly illuminating piece on causes of delinquency was included by

Wallace in the third annual report:

The toughest problem which the Juvenile court is called upon to deal with is the

not infrequent case of a husband who deserts his wife and seems willing to let her

and his children starve rather than support them. To send such a man to jail does

not solve the problem. The punishment falls upon the innocent wife and children

more heavily than upon the guilty father. They share his punishment without his

guilt. The good men and women of this country should unite and demand such

legislation as would enable these men to work at remunerated labor of some kind

while in prison. Money thus earned could be credited to prisoners and made

available for aiding their families in need.

607

As of 1917, the juvenile court judge was still seeing the problem of delinquency and neglect

in Victorian terms – as the problem of deserting and intemperate husbands leaving their

wives and children to a life of moral degeneration. The tone of the report of the juvenile

602

Ibid.

603

Ibid.

604

Ibid.

605

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Third Annual Report” in Journals of the House of Assembly, Appendix No 28 (1916) at

44.

606

Ibid at 45.

607

Ibid at 44.

196

court judge in the years following up until the 1920s continued to stress that immoral,

irreligious households were the primary cause of juvenile delinquency.

But this focus by some judges on intemperate fathers does not mean that neglect

was not also tied to poor mothering. In the 1919 Annual Report Judge Hunt of the Halifax

juvenile court admitted that one of the causes of delinquency can be traced back to the

“recent terrible war” and the demoralizing effects it had. However, he then went on to

blame incompetent mothering as a second cause of this delinquency and neglect. After

noting that cases of delinquency had risen from 190 cases in the previous year to 238 cases

in 1919, Hunt laid out his two causes for this rise:

In seeking for a cause, perhaps one or two reasons may be fairly admitted. One we

may find, as the result of the recent terrible war. War is always demoralizing,

through it we become familiar with cruelties and spoilage. The minds of our youths

become corrupted with what they see and hear, and in short time are felt results

that fill us with alarm and dread.

Another cause may, I think be found, in poor and neglected homes, the

consequence of which are neglected children. There are scores of homes in our City

where the father of a family is compelled to be away all day earning a livelihood,

and where the mother neglecting her family duties is found too often spending her

time in some of our many places of amusement. Such homes are breeding grounds

of crime. Given good mothers we have little to fear from neglected homes and from

influences that go so often to ruin the brightest lives. Incapable and incompetent

mothers make homelife so distasteful and repugnant to their children that the

attraction of the street soon becomes stronger than the attractions of home and as

a consequence children find their amusement and their companions outside of the

home amid temptations and surroundings that tend to make disorder and crime.

It is hoped that some means can be devised to give advice and help under such

circumstances. If we are able to make progress in the right direction we must begin

at the home. It is well known from homes where are found good mothers there our

most successful men have had their start in life.

608

Judge Hunt was also clear about the causes of delinquency and neglect: poor and

neglected homes produce poor and neglected children and incompetent mothers are

responsible for this poverty. While he recognizes that the Great War had an effect on

608

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Sixth Annual Report” in Journals of the House of Assembly, Appendix No 28 (1919) at

15-16.

197

society, the effect is to demoralize and corrupt the minds of youth. As for poverty and the

social problems that lead to neglect, these he lays at the feet of incompetent mothers. In

answer to these causes, Hunt stresses the importance of religious education and teaching

a child “his or her accountability to God” and the importance of children understanding

that the “real life consists of service. They are saved to serve.”

609

The private philanthropic discourses of temperance, and Christian morality were

alive and well in the juvenile courts in the years during and just after the Halifax Explosion

and the Great War. However, these ideas had already become anachronistic. The

conditions for thinking and speaking in a more “scientific” and objective way about

delinquency and neglect had begun to emerge in the human sciences. This scientific

thinking would have a tremendous effect on the “socialized justice” that was beginning to

emerge from the court and that would come to have a lasting effect on child protection law

and jurisprudence.

By the 1920s there were two juvenile courts in the Province: one in Halifax and one

in New Glasgow. By November 1925

610

the Superintendent of Neglected and Delinquent

Children, Ernest Blois, had become the judge of the juvenile court in Halifax. The

procedures and practices of the Juvenile court continued to be informal as in the earlier

years of the Court under Judges Wallace and Hunt. Judge Blois saw his role as deciding

upon the welfare of the child – a role he would also have undertaken in his parallel role as

Superintendent of Neglected and Delinquent Children – however, with the imprimatur of

law at his disposal. In his 1926 Annual Report he wrote:

609

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Third Annual Report” in Journals of the House of Assembly, Appendix No 28 (1916) at

17.

610

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Fourteenth Annual Report” in Journals of the House of Assembly, Appendix No 28

(1927) at 80.

198

It may only require a few minutes to decide whether a boy is guilty of a particular

offence, indeed in ninety-five percent of the cases he will readily admit his guilt,

but the problem as to what is to be done about it, not only in the child’s interest but

in the interest of the community, is often a very difficult one and requires much

consideration.

611

There is little sense of due process or proportionality in Blois’s decisions. For

example, in his Annual Report for 1927 he indicates that for even a first offence a boy could

be removed from the home and placed in a reformatory:

In the Court for the City of Halifax, a complaint is usually taken in the ordinary way

and either a notice sent to the parents asking them to appear at a certain time with

the child, or a formal summons is issued with the prescribed notice to parents. Only

on extremely rare occasions is a warrant issued, possibly not more than one or two

during the year. The courtroom is an ordinary office, without any of the furniture

or appointments usually distinguishing a court room. Those present besides the

judge, the parents and the boy usually consist of a probation officer and the person

making the complaint. Witnesses are called in as occasion requires. The whole

proceedings are simple but in conformity with the Statute. Evidence is taken on

oath. In most cases where a boy will stoutly deny the charges even in the face of

overwhelming evidence against him.

…

Probation may be extended to a boy who has several delinquency records against

him; on the other hand a first offence may send a boy to the reformatory or to a

foster home, the controlling factors being, the character and attitude of the boy’s

parents, or guardian, and the environment in which he is living together with the

probable effect of the boy’s release on probation upon other boys in the

neighbourhood and the rights of the citizens to protection. Parents who show a

disposition to work with the Court to prevent further delinquencies are usually

given custody of their boy under probation, but where the Court is convinced that

the parents are more concerned with getting their boy “off” by any hook or crook,

and where their whole attitude shows that that the offence committed is not what

they are ashamed of or regret…probation methods cannot be successfully

applied.

612

611

Ibid at 85.

612

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Fifteenth Annual Report” in Journals of the House of Assembly, Appendix No 28 (1928)

at LXXXV.

199

Furthermore, there is no mention of legal counsel for delinquents in Judge Blois’

description of court procedure, nor does he seem sympathetic to the idea of parents who

try to plead their child’s case and “get their child off”. Once a child was accused, there was

little hope of stopping the system from intervening.

The purpose of flexibility in legal proceedings was to allow non-legal experts to

work with children in a probationary or reformatory fashion, rather than punishing

children and sending them to jail. Legal expertise was in fact undervalued at the court in

favour of more socially-minded disciplines such as social work and psychiatry. Judge

Blois did not have legal training, but rather, had trained and worked as a school teacher

before becoming the School Superintendent in 1906 and then the Superintendent of

Neglected and Dependent Children and Chief Probation Officer of the Juvenile court in

1912.

613

Of interest at the juvenile court was not testing the evidence to ensure that state

intervention into the family and the deprivation of the liberty of both child and parent

was warranted, but rather intervention was assumed to be warranted and as Judge Blois

states above, the only outstanding question was: what is to be done in the child’s and in

the community’s interest? It is difficult when reading the reports of Judge Blois and

knowing that he was also the Superintendent of Neglected and Dependent Children, to

conceive of what purpose the juvenile court was serving besides what we see today as the

work of the children’s aid societies. As he was also the head of child welfare in his

executive function, as well as the judge of the juvenile court, there was no distinction

between the executive activity of the Department and the legal activity of the courts. The

court served neither as a check on executive power, nor as a strident defender of liberty

613

Fred MacKinnon, “Life and Times of Ernest Blois”, available online:

<http://www15.pair.com/buchanan/genes/docs/ernblois.htm>.

200

rights. Its central goal was to ensure that children who currently were or potentially could

serve to disturb order in the city were sent to the appropriate institutions, or placed under

probationary supervision in the care of their families, with the aim of socializing and

disciplining these children to become industrious, productive and well governed citizens.

In particular, Judge Blois’ reports from this time evidence the increasing attention

paid by societies and institutions to science, medicine and the expert field of social work

making its way into his decisions. His juvenile court reports indicate that he was of the

mind that a scientific approach was the proper approach to finally addressing the causes

of delinquency of children that were mentally and emotionally “unfit”. In this quotation

we see him bemoaning the use of time limits on intervention as standing in the way of a

scientific approach to effectively “treating” delinquency:

Another matter which should be better understood by the general public is the

mental and emotional condition of many of these delinquents. The Court is

thoroughly aware that a certain boy is mentally unfit, or may be emotionally

unstable, and ought not to be at large, because he is incapable of taking care of

himself or adjusting himself to society: the reformatory institutions are well aware

of these facts and they do not recommend his release but there is a time limit for

his detention and there is also the question of the expense of his maintenance, no

inconsiderable matter. The result is that many boys and girls are released from

these reformatory institutions when the Court and the institutions know perfectly

well that they will very soon become lawbreakers and if within the age be returned,

or if over the age find their way into the police courts, jails and penitentiaries. This

is obviously a foolish policy to pursue, and the wonder is that the State has so long

and so persistently followed it. Society is not willing, apparently, to pay the price

for a sound scientific treatment of juvenile delinquency and crime prevention.

614

What is also noticeable by the mid-1920s is that the juvenile court was almost

wholly reserved for juvenile delinquents as opposed to neglected children. For example, in

1927, there were 144 cases involving juvenile delinquents before the court and only 20

614

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Fifteenth Annual Report” in Journals of the House of Assembly, Appendix No 28 (1928)

at LXXXVII.

201

cases involving neglected children.

615

By 1929, 213 cases heard at the Halifax Juvenile court

were labeled delinquent and 21 were neglected.

616

Very rarely would Judge Blois or the

Provincial Psychiatrist even report on neglected children – the focus being exclusively on

the causes and treatment of delinquency.

An obvious reason for this, was that there was little differentiation in the work of

the society and the juvenile court based upon whether or not a child was a delinquent or a

neglected child. Indeed, as mentioned, as Judge Blois said himself at the first Nova Scotian

child welfare conference in 1926: “there really should not be two groups of children namely

neglected and delinquents. Children do not become delinquents except by reason of

neglect of one kind or another.”

617

Treatment of the delinquent or neglected child would

be virtually the same: both may be sent to a foster home or to a reformatory depending on

what the Court and the society felt were in the child’s best interests.

618

Furthermore, as indicated above, just because the juvenile delinquent was in the

courtroom and charged with an offence did not mean that he or she was “innocent until

proven guilty” or that they were given a trial. As Judge Blois quite plainly states above,

proceedings were informal and most of the time the child would merely “admit” to the

offence. What constituted an “offence” for the purposes of delinquency was also quite

615

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Sixteenth Annual Report” in Journals of the House of Assembly, Appendix No 28 (1929)

at 70.

616

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Seventeenth Annual Report” in Journals of the House of Assembly, Appendix No 28

(1930) at 84-85.

617

Nova Scotia, Minister of Public Welfare, The Nova Scotia Association of Children's Aid Societies:

1926-1956, Publication #4 (Halifax: Minister of Public Welfare, 1972) at 109.

618

Nova Scotia, House of Assembly, Office of the Superintendent of Neglected and Dependent

Children, “Fifteenth Annual Report” in Journals of the House of Assembly, Appendix No 28 (1928)

at LXXX.

202

significant. For one thing, truancy comprised the largest caseload of juvenile delinquents.

Given the fact that a “neglected” child was one that did not have “salutary parental

supervision” or came from an “unfit home” it is not difficult to see how a neglected child

would soon come to be labeled a “delinquent child”. Indeed the terms are quite

interchangeable. The link between poverty and criminality was maintained, although

within a scientific or objective frame.

619

Whether a child was labeled “delinquent” or

“neglected”, the role of the court was to legitimize and reinforce the work of non-legal

experts such as psychiatrists and social workers to help normalize the child and assure his

proper integration into society.

The juvenile court was positioned as a specialist court within a larger child welfare

regime and articulated judgments with a claim to have authority over child welfare

knowledge. Adjudicating on the presence or absence of neglect or delinquency was not the

main aim of the Court. Even though the court and its legislation structured juvenile

delinquent and child protection proceedings very much in criminal law terms, the Court

was little concerned with the actual fact of the offence. The probationary, remedial nature

of the Court meant it was almost wholly focused on whether the child was the type of child

with which the court should be concerned and not on testing state intervention. Once the

court was satisfied that it was dealing with a “neglected” child or “delinquent” child, the

goal for the juvenile court judge was to determine what was in the child’s welfare. Legal

expertise and liberal legalist limits on intervention are seen only as barriers to determining

and facilitating this welfare.

The source of authority to proclaim what constituted the welfare of the child came

from the same place that the institutions and societies were gaining their claims to

specialist knowledge – this mix of denominational, philanthropic, medical and psychiatric

619

See Chunn, From Punishment to Doing Good, supra note 576 at 19-20.

203

expertise. By working upon this body of knowledge without subjecting it to scrutiny, the

legal decisions that emanated from the juvenile court provided this body of knowledge with

the force of law and the force of objective truth. Furthermore, in failing to scrutinize the

work of the professionals in the institutions as interventions which might call into question

the liberal rights of the individual, the court served to de-politicize the work that was being

performed in the institutions. However, the institutions and their personnel had the

decidedly governmental role of removing children from the home and institutionalizing

them where they would be socialized to become productive citizens who would not be a

charge on the state. The ways and means of this socialization, as we have seen, reinforced

existing power relations in society. Failing to scrutinize these interventions reinforced the

apolitical character of this disciplinary regime and rendered the juvenile court with the

very political function of maintaining the status quo as far as gendered, classed, raced and

ablest politics were concerned.

In turn, the body of knowledge which sought to define the welfare of the child in

medicalized and scientific terms provided the legal concept of welfare in public custody

disputes with identifiable, increasingly objective content. This child development expertise

therefore helped to legitimate the role of the juvenile court as a specialist court capable of

passing judgment on the children and families within its charge.

It would not be until more than a decade after the development of the juvenile

courts when a liberal rights challenge was made at the Superior Courts. By 1926 the

Superior Courts were starting to challenge juvenile court decisions on the basis of denial

of liberty and due process rights. Superior Courts were often not accessible to families in

poverty. The cases in which the Superior Courts did hear and uphold a challenge to the

juvenile courts were few and far between. In this way we can understand that lack of access

of poor families to upper courts, and their relegation to the lower courts, was part of an

overall regime to regulate families in poverty.

204

Socialized Justice versus Liberal Legalism: 1926-1940

As the Juvenile court became more interested in treating and socializing the child

as future citizen and in safeguarding society from the delinquency of children, we see a

marked break with classical liberal legalism. As opposed to ensuring the negative liberty

of the subject and patrolling the boundary between the public sphere of the state and the

private sphere of the family, the juvenile court treated liberal legalism– its need for due

process, the proper trying of evidence, and state’s burden of proof – as a hindrance, rather

than as a necessary component to its work. This brought the work of the juvenile court into

direct conflict with the dictates of liberal rule of law thinking. Between the years 1926-

1940, the Supreme Court of Nova Scotia reacted to the lack of due process evident in Judge

Blois’ court with the articulation of an early liberal rights critique of the juvenile court and

a warning for greater procedural fairness in the courtroom. Unfortunately, the beginning

of this liberal rights discourse also marks the end of reported decisions of the juvenile court

in the Annual Reports. We can see from the appeal decisions in the Supreme Court reports,

however, that up into the 1940s, Juvenile courts continued to show a marked lack of

traditional due process and respect for liberal rights.

The first case in the “liberal rights jurisprudence” of the Supreme Court was Re

Mailman

620

. Re Mailman involved Dorothy Mailman, a girl of sixteen years of age who had

been found to be a neglected child pursuant to s. 22 of the 1923 Act.

621

On appeal to the

Supreme Court, counsel for the mother argued that Dorothy was not a neglected child and

that the requirements of the Act were not met. In particular, he argued that: there was no

620

(1926) NSR 61.

621

Children’s Protection Act, RSNS 1923, c 166.

205

evidence that the home was an unfit home; there was no proper adjudication of the case;

only one magistrate and not two as required by the Act heard the case; no evidence was

taken before the judge; there was no sworn evidence; and although the mother asked the

agent to return later when the father came home from work, the agent insisted on serving

the mother with notice.

622

Counsel for the agent, Mr. Prosser, argued that prima facie the

proceedings were properly taken and that the agent was entitled to serve the mother as she

was liable to maintain the child under the Poor Law.

623

In allowing the appeal and ordering the discharge of Dorothy Mailman to her

mother, Graham J. for the Court found that:

The hearing [by the justice of the peace] was of a most informal character. The girl

is said to have answered some questions put to her by the agent of the society.

Whether what she said shewed her amenable to the law or not is not

clear…Whatever merits may be, the whole affair appears to have been conducted

without regard to elementary principles for the conduct of judicial proceedings.

The case was heard on the footing of a return having been made by the society to

an order under the Act.

624

In particular, the Court found that there was no record of complaint, evidence or

finding in the case at all; that only one justice of the peace was present at the hearing

although two signed the order; and the mother was afforded no opportunity to “prepare a

defence” to the charge.

625

Justice Graham noted that the “wife, a sick and illiterate woman,

attended the hearing, stated that her husband would be home that afternoon, and asked

that the enquiry be postponed until his return”.

626

Evidently, the hearing was not

622

Mailman, supra note 620 at 62-63.

623

Ibid at 63.

624

Ibid.

625

Ibid at 63-64.

626

Ibid.

206

postponed and the child was found to be a neglected child and committed to the care of

the Society.

The Court allowed the appeal on the grounds that there had been such a denial of

natural justice as to render the proceedings null and void. It is noteworthy that the Court

did not review the merits of the finding that the girl was a neglected child under the Act

nor did it discuss what facts would have to be present in order to make such a finding.

Instead, the Court based its decision very clearly on the lack of due process and the

informality of court proceedings. The Court found that the procedural informality was of

such a grievous nature that the court could not justify holding the child. It is evident from

the dicta of this case that the Mailmans were a poor family – Mrs. Mailman is described as

a “sick and illiterate woman” and Mr. Mailman was a “labourer employed in the lumber

woods and was sometimes necessarily absent from home.”

627

While on the one hand the

Court was signaling to the juvenile court that it must abide by the rules of natural justice,

it was also signaling caution in treading on the sanctity of family privacy of the “deserving”,

that is, the industrious, working poor.

628

627

Ibid.

628

The scope of the procedural irregularities that the Court was willing to insist on, however, had

its limits. The case of Mailman can be contrasted to the appeal on the basis of procedural irregularity

in the case of The King v Wilfred L St Peters (1927) NSR 198, brought the year after the Mailman

case. In St. Peters, the same composition of the Supreme Court denied another habeas corpus

application that was brought on the basis of a technicality about whether or not Judge Blois had the

jurisdiction under the Juvenile Delinquents Act, 1908 to convict and sentence the juvenile

delinquent. It was argued that it had not been proved in Juvenile court that the proclamation

bringing the Juvenile Delinquents Act, 1908 into force had ever been published in the Canada

Gazette. The Court denied the habeus corpus application on these grounds, holding that “There is

a presumption of regularity in support of the authority of the judge” and that “proof of the

proclamation was not relevant to any issue which was to be tried by the judge”. While Court was

willing to allow habeas corpus application on the basis of the absence of natural justice evidenced

in Mailman, it was not willing to allow an application on a mere technicality.

207

In the 1940 case of Re Wasson

629

, the Supreme Court again insists on greater due

process rights in cases where the liberty of the subject is deprived by the juvenile court.

The case of Wasson involved another habeus corpus application under the Liberty of the

Subject Act

630

to release Phyllis Wasson, a fifteen year old girl, from the Maritime Home

for Girls. Wasson was found guilty under the Juvenile Delinquents Act, 1908 for receiving

stolen money knowing it to be stolen.

631

Counsel for Wasson argued that proper notice of

the hearing before the juvenile court judge had not been provided to the mother of Wasson.

The case was appealed up to Supreme Court after Hall J. in Chambers dismissed the

application on hearing the deposition of Lillian McBurney, a domestic servant in the

charge of Wasson’s mother. McBurney swore that she was asked by Wasson’s mother to

go to Court with Wasson as the mother was unable to attend court because she was sick.

McBurney attended with the child Wasson and Wasson was convicted and sent to the

Maritime Home for Girls.

632

Justice Hall had found that based upon the testimony of Ms.

McBurney, Mrs. Wasson had been given due notice of the hearing.

633

The Crown argued that section 17(2) of the Juvenile Delinquent’s Act, 1908 applied

and cured the defect of lack of notice where the notice was acted upon. Having McBurney

appear in court was proof that the notice was acted upon. Section 17(2) of the Juvenile

Delinquent’s Act, 1908 provided:

17(2) No adjudication or action of a juvenile court with respect to a child shall be

quashed or set aside because of any informality or irregularity where it appears that

the disposition of the case was in the best interests of the child.

629

(1940) 14 MPR 405.

630

RSNS 1923, c 231.

631

Wasson, supra note 629 at 405.

632

Ibid at 406.

633

Ibid.

208

In a unanimous decision, the Supreme Court allowed Wasson’s appeal and ordered

her released from custody. The Court held that proper notice had to be effected in writing.

Justice Doull held that,

I do not think that the want of notice is a mere irregularity or informality. It is a

requirement, the neglect of which may lead to grave abuses. It is to be remembered

that these Courts are held in private and that newspapers are forbidden to publish

reports thereof except under severe restrictions.

While I regret that I will interfere with a disposition of the child, which may have

been the best possible, I have reached the conclusion that she must be

discharged.

634

Not only was the Supreme Court at this time willing to interfere with the decision

of the juvenile court judge on the basis of procedural fairness, but we see in the case of R.

v. McCorry

635

the Supreme Court overturning a ruling of Judge Blois on the merits. In

McCorry, the accused was convicted by Judge Blois that she did “knowingly omit to

provide care and maintenance for a child, John McCorry, a child under the age of sixteen

years and did thereby cause said child to become neglected”.

636

McCorry was sentenced to

three months imprisonment. The case was appealed to the County Court judge who upheld

the conviction but did not provide reasons. This decision was then appealed to the

Supreme Court.

In allowing the appeal, Carroll J. for the majority of the Court held that the Crown

had failed to show that McCorry had “knowingly omitted to provide care and maintenance

for the child and also that as a result of the omission the child became a neglected child

within the meaning of the statute.”

637

The facts of the case, as recited by Carroll J. were

634

Ibid at 409.

635

(1933) 6 MPR 528.

636

Ibid.

637

Ibid at 529.

209

that the father had care and custody of the child but then lost his job and was no longer

able to care for the child. The father then handed the child over to a Mr. Keller with the

understanding that if he was satisfied with the child he would adopt the child. However,

Keller decided he did not want to adopt the child and notified the father that he would find

another place for the child. After being unable to find a place for the child, Keller handed

the child over to the children’s aid society. The CAS then laid the charge against McCorry

for contributing to a child becoming a neglected child.

The Supreme Court was not willing to commit a father to jail for losing his job and

having to give his child away potentially for adoption. Justice Carroll held that “The whole

record indicates that the father, the accused, was endeavouring to look after the child, or

have someone look after it, and in no sense can it be fairly said that it was deserted by its

parents.”

638

The Court was unwilling to set a precedent that parents who were morally

blameless will be sent to prison if they lost their jobs and failed to be able to provide

financially for their children. Justice Carroll stated at one point, “I presume the statute

only embraces cases where a person has it within his power to provide care and

maintenance.”

639

In this case, the Court found that McCorry was not withholding

maintenance, he simply could not provide it. While he may “knowingly” have omitted to

provide care for his son, the Supreme Court was again insisting that it would not deprive

him of his liberty without some evidence that he “willingly” failed to provide care.

By 1936 the Supreme Court insisted further on the separation of immorality and

poverty. The Court held that not only did the Juvenile court have to show actual immoral

conduct on the part of a parent or guardian, but it also had to show some connection

638

Ibid at 530.

639

Ibid at 529.

210

between this conduct and the delinquency of the child in order to make a finding of

contributing to delinquency. In the 1936 case of Re McDonald

640

, the Court allowed an

application for “discharge from imprisonment” pursuant to the Liberty of the Subject Act,

on the basis of insufficiency of evidence. The accused was charged under s 33(1) of the

Juvenile Delinquents’ Act, 1908 for contributing to a child becoming a juvenile delinquent.

The child in question was seventeen months old when the accused had sexual intercourse

with the child’s mother: “a woman not his wife,”

641

in the presence of the child. The

accused was then charged under the Juvenile Delinquents’ Act with contributing to

delinquency. The Crown argued that s 33(4) of the Act was a bar to the accused using the

age of the child as a defense to the crime. Section 33(4) of the Juvenile Delinquent’s Act,

1908 provided:

It shall not be a valid defence to a prosecution under this section either that the

child is of too tender years to understand or appreciate the nature or effect of the

conduct of the accused, or that notwithstanding the conduct of the accused the

child did not in fact become a juvenile delinquent.

642

In the Court’s dissenting opinion, Hall J. found that this section, particularly the provision

that the child was of too tender years to understand or appreciate the nature or effect of

the conduct of the accused, was a direct answer to the accused’s arguments. In contrast,

the majority of the Court, written by Graham J. held that:

In many cases no direct evidence is given to establish [that the act contributed to a

child becoming a juvenile delinquent], but the Court, infers from the age or

appearance of the child, that it would or might understand its nature and be

influenced by it. In this case, however there was not only no direct evidence, but

there could be no inferential evidence.

643

640

(1936) 11 MPR 91.

641

Ibid at 95.

642

Ibid.

643

Ibid at 94.

211

The Court insisted that it was not weighing the evidence, thereby turning the case

into an appeal – which was precluded by s. 33(4) of the Act – but rather, that pursuant to

s. 8 of the Liberty of the Subject Act it was entitled to consider the sufficiency of evidence

and whether the Crown had proved a prima facie case against the accused.

644

The majority

of the Court felt the rights of the accused outweighed s. 33(4) of the Juvenile Delinquents

Act and essentially found that the first half of the provision violated the provisions of the

Liberty of the Subject Act. That the child understood the nature and effect of the act was

an integral element to the offence and without it there was no offence and no justification

for depriving the accused of their liberty. The Court insisted that without this element, the

offence was simply an immoral act, and not necessarily a crime – an important distinction

to be made at the time. The liberal sentiment here is quite plain – due process, notice,

sufficiency of evidence, and proper representation would all be required in order to bring

juvenile court decisions in line with the rule of law. An individual sphere of privacy and

liberty had to be maintained and could only be intruded upon when it could be shown that

the individual was accorded their due process rights.

Conclusion

While in Chapter 2 we saw that the introduction of child protection legislation was

a way to regulate the behaviour of children without having to punish the children

themselves, the child before the juvenile court was understood as being in need of reform

himself, lest he become a future criminal. As with child protection work in other Western

countries, child protection work in the early decades of the 20th century saw little

differentiation between the neglected child and the delinquent:

644

Ibid.

212

…there is little or no difference in character or needs between the neglected and the

delinquent child. It is often a mere accident whether he is brought before the court

because he is wandering or beyond control or because he has committed some

offence. Neglect leads to delinquency and delinquency is often the direct outcome

of neglect.

645

The Halifax Explosion, First World War and then the Great Depression brought a

new level of social dislocation to the city of Halifax and a concerted effort on the part of

law and society to control children of the poor as risks to the social order.

646

While the

Prevention and Punishment of Cruelty to Children Act focused adjudication on parental

acts and transgressions, the juvenile delinquent regime focused on the child as the

transgressor and potential future criminal. Furthermore, with the Prevention and

Punishment of Wrongs to Children Act, a focus on parental fault served to reinforce the

idea that responsibility for the control and proper socialization of children lay with the

parents themselves. With the institutional nature of juvenile delinquent regime, the public

sphere accepted and took on responsibility for the socialization of the children of the poor.

The legal realist critique of a strict public/private divide and liberalism’s insistence

on a sphere of negative liberty, had given rise to a regime of socializing justice of which the

juvenile delinquent regime was an early example. The critique that socializing justice

posed to liberal legalism held essentially that while enforcing the civil rights of the children

and parents that came before the juvenile court would assist them in the short term, this

guarantee of rights would have done very little to keep them from having to rely upon

charitable assistance in the long term. The very point of socializing justice was to realize

the limits of liberal legalism in addressing the social problems confronted by society. The

professionals and volunteers that worked within the child protection system were working

for what they saw as the welfare of children. The creation of denominational and non-

645

England, Report of the Departmental Committee on the Treatment of Young Offenders (Home

Office, 1927) at 71.

646

Boudreau, City of Order, supra note 373.

213

denominational institutions in Halifax and the childcare work carried out within them and

within the juvenile delinquency regime, in general, no doubt assisted a many children in

poverty, ensuring they received shelter, food and an education they probably would not

have otherwise received. Many families voluntarily placed their children within these

institutions because they did not have the means to care for them themselves.

647

While responsibility for the children of the poor was accepted as a legitimate

responsibility for the public sphere,

648

this does not mean that there was general

acceptance that fault for poverty and marginalization could be ascribed to social, economic

and structural risks. Criminalizing the behaviour of children in poverty and then taking

responsibility for their “proper” socialization served to reproduce moralizing and

normalizing judgments about class, race, ability, gender and sexuality. Intemperate fathers

and incompetent mothers were openly expressed in the juvenile court reports to be the

causes of delinquency and neglect. But this negative construction of parents in poverty

intersected with racist and patriarchal ideas without juvenile court judges overtly

addressing race or gender. In this era of socializing justice, medical and psychiatric

expertise formed the content of the welfare of the child standard in juvenile court

jurisprudence. However, in issuing juvenile court reports which articulated the causes of

delinquency and neglect and the welfare of children in medicalized terms such as “feeble-

647

See discussion of the work of the city missions, for example, in Fingard, Victorian Halifax, supra

note 146 at 130.

648

However, as I will discuss in the next chapter, as early as 1921, the Commission on Mothers’

Allowances in Nova Scotia, on which Ernest Blois sat, recognized that there were potentially dangers

to institutionalization and recognized the value of providing mothers’ allowances to “fit” widows

and wives of disabled men, in order to keep their children at home. Furthermore, as Lafferty has

pointed out “the redundancy of institutional care within the child welfare system appears to have

been in its embryonic stages in the early 1920s. Through their own participation in and emphasis

upon foster placement and adoption, the institutions themselves were encouraging their own

superfluity.” See Lafferty, supra note 436 at 127.

214

mindedness”

649

or “recapitulation theory”,

650

these specious scientific theories were

legitimized by the force of law.

The role of law in this strategy of power was not only to silence the fact of racialized

power relations but to bring the way that this power was exercised into line with a more

scientific and objective methodology. As Angus McLaren has explained in his study of

eugenics in Canada,

World War One offered doctors a golden opportunity to show the variety of ways

in which they could make themselves useful to government in providing a health,

disciplined military; they came out of the experience confident that in the future

they would enjoy positions of leadership in civilian society.

651

Doctors offered government scientific categories such as feeblemindedness,

behavioral disorders, social Darwinist ideas such as recapitulation theory, and

developmental abnormalities to explain the causes of social inequality. Doctors also

offered the appropriate medicalized treatment for this inequality.

652

Unlike other

649

Suzanne Morton, “Nova Scotia and Its Unmarried Mothers”, supra note 571 at 328 writes:

While the concept of illegitimacy may have originally referred to inheritance rights, by the

twentieth century it carried a broad range of associations that included not only immorality

or sexual impropriety but also feeble-mindedness and economic dependence upon the

community.

650

Lafferty argues for example, that juvenile court judges spoke in a “recapitulation” discourse.

Lafferty, supra note 436 at 71-72:

In Nova Scotia recapitulation theory clearly marks the annual reports of both the provincial

superintendent and the Juvenile Court judges in Halifax in the first decades of their

existence. Both of these offices frequently mobilized the child-as-savage equation when

exploring the conditions of (white) children within their jurisdictions and expressed

persistent concern about the problems that would arise if the savagery of children brought

before them remained unchecked. According to Judge WB Wallace, delinquents, truants,

and children left to roam the streets of Halifax displayed a “want of self discipline” and weak

moral fibre, as they “had never been taught the binding force of moral law…They are

brought up like young savages and know no discipline.”

651

McLaren, Our Own Master Race, supra note 439 at 29.

652

Eugenics, for example, became an acceptable theory for explaining social inequality in some

quarters in Nova Scotia at the time. For example, McLaren writes that in Nova Scotia alone, a

League for the Care and Protection of Feebleminded Persons developed as early as 1908 and had

fifty local branches by 1912. The league was known as Canada’s first “eugenical movement”. Ibid at

24 and 41.

215

jurisdictions in North America, the institution continued to be an important part of the

child protection regime in Nova Scotia up until the middle of the 20th century. The

medicalized knowledge of the human sciences in the institutions lent legitimacy and

objective truthfulness to judicial proclamations of harm and best interests.

In this way, the era of juvenile justice reflects Golder and Fitzpatrick’s theory of the

constitutive relationship between law and the disciplinary complex.

653

Disciplinary power

relied upon the force of law to ground its claim to truth, and it relied upon the law to coerce

the recalcitrant subject. In turn, this disciplinary power served to position the juvenile

court as a specialist court with specialist knowledge on child development and reform. And

it served to render “objective” highly moralized judicial decision making. Therefore, law

and psychiatry were working in constitutive engagement, performing an essentially

political role – they were working together to set out the terms of the proper citizen and

ways and means by which this citizen would emerge. The doctors and psychiatrists

attached to the juvenile court or working in the institutions acted in concert with the

juvenile delinquent regime as “technician[s] of social order.”

654

The proper citizen was an

able-bodied, white, middle-class boy or girl acting out appropriate gender roles in a

sexually appropriate manner. The children that did not fit within this model were labelled

abnormal and the medical, as well as denominational, regime would work upon the child

to attempt to normalize them.

The implications of course, of a willful ignorance of the effect of race, while

legitimizing racist constructions of children and parents, as the survivors of the Nova

653

Golder and Fitzpatrick, Foucault’s Law, supra note 109.

654

See Rose, supra note 85 at 6.

216

Scotia Home for Colored Children

655

and Indian Residential Schools

656

are now teaching

us, was the paradoxical overrepresentation of racialized children in child caring

institutions at the time, while at the same time, hiding them from view. The failure of the

Court – either the juvenile court or the Supreme Court – to scrutinize the activity of the

institutions allowed for ostensibly scientific work with children that nevertheless served to

reproduce ideas about white racial superiority and ensure racialized children were

provided constrained expectations and opportunities fitting of their racial “evolution”.

Furthermore, a lack of accountability of staff and the under-resourced nature of

institutions for racialized children further amplified the marginalizing, oppressive and

ultimately abusive effects of unfettered state control of these children.

Racist and gendered constructions of aboriginal families and children, African

Nova-Scotian families and children, and mother-headed families in particular, served to

construct intervention into these families as presumptively in the best interests of children.

Therefore, not only did a focus on the individual transgressions of juvenile offenders serve

to focus away from family autonomy, but the construction of families as themselves

presumptively incompetent served to render moot any need to articulate and address at

law the autonomy of this family.

Furthermore, when we compare the jurisprudence that issued from the Supreme

Court at the time, with that of the juvenile court we can see a lack of access to justice to the

superior courts kept the concerns of families in poverty to lower courts without the

individual liberty protections found in the Superior Courts pursuant to the Liberty of the

Subject Act. Despite this lack of access to justice, however, we still see a jurisprudence of

655

See for example, Eva Hoare, “The Silence is Deafening: Former Residents Who Claim They Were

Abused Urge African-N.S. Affairs Minister to Add Voice to Call for Inquiry” Chronicle Herald,

November 8, 2012, online: http://thechronicleherald.ca/metro/165768-the-silence-is-deafening.

656

Truth and Reconciliation Commission, supra note 572.

217

individual rights issuing from the courts at the time. This indicates that parents in poverty

did not just accept the institutionalization of their children, but used the law the advocate

for their rights. This activity of marginalized families using legal means is consistent with

recent findings of the Truth and Reconciliation Commission. In 1934 the Shubenacadie

Indian Residential School principal had nineteen students flogged following a theft at the

school.

657

As a result of parental complaints a judicial inquiry was called into the principal’s

actions. As Chris Benjamin found in researching his book, Indian School Road, many

families brought complaints against the residential school system but they rarely found a

sympathetic ear. With respect to the 1934 judicial inquiry he writes:

The 1934 public inquiry into abusive punishments presided over by Judge Audette

(who sympathized with white people who didn’t want to live near Indians) in which

the staff members of the school were exonerated, resulted in jubilant media

coverage that sometimes mocked the children’s complaints. The Halifax Herald

depicted the boys who testified to having been severely physically abused by the

principal as disgruntled whiners lacking ethics and sincerity.

658

The legacy of the institutionalization of the disabled in Nova Scotia and the coercive

and denigrating treatment that they have received and the images with which they were

depicted continue with us today.

659

In general, the trauma of marginalized families having

to relinquish their children and possibly never seeing them again is incalculable. While

socializing justice was critical of classical liberal legalism’s insistence on a strict divide

between the public and the private, its failure to recognize and affirm the liberty of children

and their families would likewise have devastating effects. And yet the critique that

657

Truth and Reconciliation Commission of Canada, They Came for the Children: Canada,

Aboriginal Peoples and Residential Schools (Winnipeg: Truth and Reconciliation Commission,

2012) at 38-39.

658

Benjamin, Indian School Road, supra note 567 at 126-127.

659

See for example, Michael Tutton, “Mothers Urge Probe After Death at Lower Sackville Rehab

Centre,” Chronicle Herald (26 May 2014), online: Chronicle Herald

<http://thechronicleherald.ca/metro/1210188-mothers-urge-probe-after-death-at-lower-

sackville-rehab-centre>

218

socializing justice posed of liberal legalism was apt – a liberal rights regime alone was

capable of doing little in terms of providing substantive support for families in poverty.

However, it would not be until the 1960s when there would be a realization that justice

would require greater economic support of these families in the form of social

assistance.

660

Although we see the Supreme Court limiting the scope of intervention of the

juvenile delinquent regime, these limits were capable only of protecting individual rights

to privacy and liberty. In this sense, the Court was protecting a sphere of privacy for

individuals who could gain access to the Court, but it was not yet able to guarantee a sphere

of family privacy or family autonomy. For instance, in Mailman, supra, the Court was able

to point to how aspects of the due process rights of the child and parents individually were

violated as a basis for ordering the return of the child. But what is missing in the decision

is an actual articulation of the right of the family in poverty to remain together and to self-

determine without unjustified outside intervention. Beginning in the 1950s the Supreme

Court of Canada articulated a concept of natural parental rights which allowed the Courts

to adjudicate upon a sphere of family autonomy that would be protected by the Courts vis

a vis the child protection system. Families in poverty which had previously experienced a

coercive regulation would have a sphere of privacy articulated and protected by the courts.

The next chapter will discuss the potentials and limitations for marginalized families of

this jurisprudence of natural parental rights.

660

Even so, the 1960s would see the dismantling of Africville and the “60s scoop” where children

on aboriginal reserves were removed en masse. Equal rights for aboriginal and African Nova

Scotians would only begin to be discussed in the mainstream with the introduction of the Charter

in the 1980s. Marlee Kline, “Child Welfare Law, ‘Best Interests of the Child’ Ideology, and First

Nations” 30 (1992) Osgoode Hall LJ 375 at 376.

219

Chapter 4:

1940s- 1980s: Deinstitutionalization, Natural Parental Rights and the Rise of

the “Unmarried Mother-Headed family” as a Legitimate Family

Bowen L.J. in In re Agar-Ellis; Agar-Ellis v. Lascelles [(1883), 24 Ch. D. 317 at

337-8.], quoted in the Re Baby Duffell at p. 747:

. . . it must be the benefit to the infant having regard to the natural law

which points out that the father knows far better as a rule what is good

for his children than a Court of Justice can.

By the 1940s and 50s, experts in the field of child psychiatry, such as John

Bowlby

661

and Anna Freud,

662

were producing internationally-renowned studies on the

importance of maternal attachment and the harmful effects of institutionalization. In Nova

Scotia, members of the child welfare regime were increasingly calling for the use of the

city’s institutions as temporary receiving centers only – as a stopping point between

biological families and foster or adoptive families. The heyday of the institution in Nova

Scotia was over, but not the influence of psychiatry on the field of child welfare. The field

of social work was becoming more professionalized in the province, with the Maritime

School of Social Work opening in 1940 and the establishment of the Nova Scotia branch of

the Canadian Association of Social Workers in 1942.

Psychiatry and child development knowledge were becoming integral aspects of

casework with families and children. The received wisdom from child development experts

and de-institutionalists was that children belonged at home.

663

Child welfare and social

work personnel were increasingly calling upon government to provide more assistance to

661

John Bowlby, Maternal Care and Mental Health (Geneva: World Health Organization, 1952).

662

Anna Freud, Research at the Hampstead Child-Therapy Clinic: And Other Paper, 1956-1965

(New York: International Universities Press, 1969).

663

Bowlby; Freud, ibid.

220

worthy and deserving mothers in order to keep their children at home. Preventative

casework in the form of counselling and material assistance, was carried out by social

workers to help keep the family together and prevent the institutionalization of poor

children.

664

The provision of social assistance to certain mother-headed families from the 1930s

to the 1950s, meant that some types of families no longer had to place their children

voluntarily with the city’s institutions because of poverty. Widows, and families whose

breadwinners were unemployed due to disability or were killed or maimed in the war were

now provided for by social assistance and did not have to rely on the institutions or the

charitable apparatus.

665

The provision of social assistance to these families marked the

beginning of public support for the autonomy of mother-headed families. But mothers’

allowances were not provided as of right. They were only provided to certain types of

families, and even then, on certain conditions, ie., that the mothers who applied were “fit”

to look after their children.

It is in this era we see the Children’s Aid Society really take center stage in child

welfare work in Nova Scotia. The Children’s Aid Society (the “CAS”) was uniquely placed

to fill the role that the institutions once did, with its expertise in casework, home visiting

and child placement. The provision of social assistance to “fit” and “proper” families

likewise required casework and visiting expertise. Determining which families were

worthy and ensuring their continued fitness helped to quell fears that unfit families were

squandering allowances provided from the hard-earned money of taxpayers and

producing unfit, or abnormal children. De-institutionalization and the proliferation of a

664

Jacobson, A Better Deal for Children, supra note 495.

665

Mothers’ Allowances Act, RSNS 1954, s 182, s 4.

221

professionalizing cadre of social workers were essential to the emergence of the modern

welfare state in Nova Scotia.

Furthermore, newly professionalized children’s aid workers, armed with

knowledge of child development, could now be deployed into society, into the homes of

children, allowing the child welfare regime to assess the child in the family milieu. While

the Victorian child and juvenile delinquent were variously constructed as innocent or a

potential criminal, the post-war image of the child was increasingly depicted in

psychological terms. The child of the post-war era was the psychological child; a blank

moral slate that was rather the psychological product of his environment.

666

Child

development knowledge was establishing that children needed to make health, “normal”

attachments in the home.

667

While the caseloads of children’s aid society workers increased

in the 1950s and especially into the 1960s, there were relatively few children that were

actually taken into care.

668

The CAS saw its role within the child welfare regime

increasingly as working with families in the home to help keep the family together and to

ensure a proper psychological environment for the child.

669

Very little administrative and legal infrastructure was needed, then, to ensure that

the children of the poor still had regular contact with the child welfare regime. Social

workers could continue to compile statistics on these children and their families. Through

visiting and counselling work, they could impart child development advice and their

knowledge of child psychology to families. The field of psychiatry and the mental hygiene

666

In 1944, for example, child psychiatrist, John Bowlby published his study on 44 Juvenile Thieves,

asserting that the reason for juvenile delinquency was early separation from the mother. See John

Bowlby, Forty-Four Juvenile Thieves (London: Balliere, Tindall and Cox, 1946).

667

Bowlby, Maternal Care and Mental Health, supra note 661.

668

Jacobson, A Better Deal for Children, supra note 495 at 41.

669

Ibid.

222

movement were developing knowledge about the family as a nexus of relationships which

either produced the well-adjusted or neurotic child.

670

The family itself became an

important psychiatric subject. The newly professionalizing field of social work assisted in

moving this psychiatric knowledge from the institutions into the sphere of the family.

But one family form was still presumed to be both unfit for the purposes of assuring

a proper psychological environment for the child and undeserving of public support: the

unwed-mother-headed family. Child development theories saw unwed mothers as unable

to provide for healthy, normal child development. Furthermore, unwed mothers who had

conceived their children out of wedlock were presumptively deemed unfit and did not

become eligible for social assistance 1966. Until this time, they continued to be provided

for under by municipal settlements, as per the Poor Law.

671

The policy of the CAS in the

post-war years and into the 1960s, was to provide unwed mothers with “services” so that

they could make a “plan” for the child. In many cases this would entail adoption or the

making of wardship orders for un-relinquished children.

672

New knowledge about, and a renewed respect for, the family was also reflected in

child welfare jurisprudence. In the 1950s the a jurisprudence of “natural parental rights”

issued from the Supreme Court of Canada, articulating the presumptive right of the natural

parent to the custody and care of the child.

673

This articulation by the courts of a concept

of natural parental rights, in concert with the provision of social assistance for mother-

670

Mona Gleason, “Growing up to be ‘Normal’: Psychology Constructs Proper Gender Roles in Post-

World War II Canada, 1945-1960,” in in Lori Chambers and Edgar-Andre Montigny, eds, Family

Matters: Papers in Post-Confederation Canadian Family History (Toronto: Canadian Scholar’s

Press Inc, 1998) at 39.

671

Janet Guildford, “The End of the Poor Law: Public Welfare Reform in Nova Scotia before the

Canada Assistance Plan,” in Judith Fingard and Janet Guildford eds, Mothers of the Municipality:

Women, Work and Social Policy in Post-1945 Halifax (Toronto: University of Toronto Press, 2005).

672

Jacobson, A Better Deal for Children, supra note 495 at 41.

673

Martin v Duffell, [1950] SCR 737, 4 DLR 1; Hepton v Maat, [1957] SCR 606; and Agar v

McNeilly, [1958] SCR 52.

223

headed families and the families of disabled men, marked a concerted support for the

autonomy of marginalized families. But as I will argue, the concept of natural parental

rights was also progressive in that it challenged the hostility towards unwed mother-

headed families from social services quarters at the time that saw unwed mothers as

presumptively undeserving of support and assistance. The jurisprudence of natural

parental rights was important not only for protecting a sphere of liberty around the unwed-

mother-headed family, but it served to construct the unwed-mother-headed family as a

legitimate family, and unwed mothers as capable of providing care for the child, sufficient

to obviate the need for state intervention. Rather than presuming that state care was

required for the children of unwed mothers, the Courts affirmed that there had to be a

testing of the need for state intervention.

The protection of a sphere of privacy for these unwed-mother-headed families

despite their construction as psychologically unfit and undeserving evidences a

progressive use of a presumption of family autonomy against the disempowering

constructions of unwed mothers from social policy and the child caring professions. In this

chapter I will investigate how the concept of natural parental rights developed and

ultimately, what promises it held for empowering unwed mother-headed families and

other marginalized families. In the end, however, I argue that while the jurisprudence of

natural parental rights was at points progressive, it also proved to be vulnerable to negative

value judgments about mothers and families in poverty. This era of child protection

jurisprudence serves as an important study of the limits and potentials of a legal

presumption of family autonomy for marginalized families.

224

The Creation of Nova Scotia’s Provincial Public Assistance Regime

The child welfare regime was an integral factor in the emergence of social

assistance in Canada. The very rationale behind social assistance in the early years was to

safeguard the welfare of children in the home, particularly those of “deserving” widows.

674

Provincial mothers’ allowance legislation was enacted across Canada in the years following

the First World War as the devastation and loss of human life in that war gave rise to a

sharp spike in female-headed households.

675

The first province to pass a Mothers’

Allowances Act was Manitoba (1916), swiftly followed by Saskatchewan (1917), Alberta

(1919), British Columbia (1920) and finally, Ontario later that same year. The mothers’

allowances were administered in Saskatchewan, Alberta and British Columbia by the

Superintendent of Neglected and Delinquent Children in each province. In these provinces

the Superintendent and his office was not only charged with overseeing the child welfare

regime, but in deciding applications for assistance.

By 1919, in Nova Scotia, the Poor Law was still in place and the only provision for

social security in the province was municipally-provided Halifax Relief pensions, or

provincially administered worker’s compensation schemes for workers disabled or killed

in industrial accidents.

676

Provision of social assistance was, however, on the radar of the

provincial government at this time, partly due to the social problems caused by the First

World War and the Halifax Explosion, but also because these allowances had been in place

674

See Little, No Car, No Radio, supra note 63.

675

Ibid; Dennis Guest, The Emergence of Social Security in Canada, supra note 207. Most acts also

provided not only for widows but for women whose husbands were in the insane asylum. While

combat PTSD is assumed to be a relatively recent mainstream concern, it is possible that the

provision of assistance to the families of men in asylums is indicative that in fact, after WWI this

was a prevailing, although possibly stigmatized, social issue.

676

Ibid at 71-72.

225

for several years in other provinces in Canada. In 1919, a provincial Commission on

Mothers’ Allowances was convened in order to research and make recommendations on

the creation of such a scheme in Nova Scotia.

677

The Commission was composed of a group of four Commissioners, including

Ernest Blois, then Superintendent of Neglected and Delinquent Children, and Jane

Wisdom, the first professional social worker in Nova Scotia who headed the Bureau of

Social Services in Halifax from 1916 to 1921.

678

The Commission ultimately recommended

the adoption of a Mothers’ Allowance for Nova Scotia, recognizing the following child-

centered rationale for the program:

[S]ociety today is necessarily engaged in repairing evils in the social structure,

sadly necessary because of poor foundation work, emphasizing the old adage that

“an ounce of prevention is better than a pound of cure.” The trend of modern

thought, as a result in social reform, is turning more to the home, the unit of the

social fabric. Mothers’ allowance schemes, which have now passed the

experimental state, are outstanding evidence of this, and may easily be classed as

advanced constructive legislation.

679

…

Your Commission cannot too strongly emphasize the cardinal principle underlying

our recommendations, namely; that the object is to provide worthy mothers, who

would be otherwise unable to do so, with the means of keeping their young children

under their immediate care. It is indisputable that it is in the best interest of both

the children and the state that they remain in their mothers’ care. The scheme must

not be confounded with compensation or pension for widows. We would also

emphasize the fact that the administration of such allowances differs materially

from ordinary pensions or compensation.

680

The final report of the Commission recommended against a Poor Law-type scheme based

on municipal settlements. The rationale was that such a scheme “would be difficult of

677

Report of Commission on Mothers’ Allowances (Halifax: Commissioner of Public Works and

Mines, 1921); SNS 1919, c 26.

678

Nova Scotia Association of Social Workers “Pioneers,” online: NSASW

<http://www.nsasw.org/inner.php?id=110>.

679

Report of Commission on Mothers’ Allowances, supra note 677 at 4.

680

Ibid at 16-17.

226

administration, and in many cases would bring unjust burdens upon comparatively small

and weak districts and municipalities. On the other hand to create a new basis of

settlements or qualification would, we think, lead to endless dispute and contention.”

681

The Commission recommended instead a province-wide scheme of social assistance:

After giving this matter matured consideration, we are convinced that the scheme

should be province wide, and that the expense should be a direct tax on the whole

province and not borne according to the number of cases of any particular locality.

We believe that the great majority of our people would favor such a scheme.

682

The Commission did not recommend, however, the universal provision of Mothers’

Allowance to all families, or even to all mother-headed families. Instead, the Commission

adopted a typology of families, familiar from the other jurisdictions in Canada, which

divided mother-headed families into five groups, by order of deservedness of support:

1. Widows. (a) Two or more children. (b) One child.

2. The wife of a man who is totally disabled.

3. The wife of a man who is the inmate of an insane asylum or under sentence in

a penitentiary.

4. The wife of a man who has deserted his family.

5. Unmarried mothers.

The Commission provided the following explanation of their typology:

After careful research and inquiry, we feel convinced that the five groups...stand in

order which the great bulk of public opinion would favor for support from public

funds. We realize that for each of the several groups strong claims could be made

for individual cases and your Commission had first thought a scheme might be

devised whereby the really worthy in each of these classes might be assisted, but

more careful and mature consideration convinced us that it was a wiser policy to

begin with the really deserving of the first group, viz. widows with two or more

dependent children, and after the necessary machinery was put in operation for

carrying out such a scheme and the results were apparent to our people, that it

would then be comparatively easy to include the most worthy of the other groups.

681

Ibid at 6.

682

Ibid.

227

In our enquiries of public officials and many private persons, we never met with

the slightest objection to the granting of an allowance to the needy and worthy

woman, left alone with the responsibility of bringing up her young children. There

was, however, a very decided opinion expressed, that the success of any such

scheme would wholly depend upon the care and good judgment of the

administering body. It was the universal opinion, and we found the same thought

strongly emphasized in all the reports we read – that too careful provision cannot

be made for determining who is to receive allowances and the conditions under

which such allowances should be enjoyed.

683

The Commission recommended that widows with two or more children should

immediately receive an allowance and only after this group should consideration be given

to the other groups. Essential to the administration of the Act was discretion, visiting and

investigation in order to determine eligibility or fitness to receive support. While

“pensions” were paid simply on the basis of one’s qualifying according to eligibility criteria,

“allowances” were to be administered on a discretionary basis. The Commission noted that

there would be reason to provide Mothers’ Allowances to groups 1 through 4, but these

should only be dispensed if the mother proved herself to the be a fit and proper mother, as

determined after visiting and investigation. With regard to the position of unmarried

mothers, however, the Commission was not convinced that this group would ever be

eligible for public funds:

We are of the opinion that no public funds should be spent for the maintenance of

children of unmarried mothers, without first changing the present law with regard

to parental responsibility for such children. We are strongly of the opinion that the

present act should be repealed and a new act substituted therefore, making it the

duty of the Province to initiate proceedings to establish the paternity of every child

and to fix the responsibility of financial support. We are doubtful, if it would ever

be wise to pay as a class of mothers of illegitimate children from public funds.

Certainly there is little public sympathy for such a proposal at this time. Yet there

are undoubtedly rare cases when it would be in the interest of the particular child

and mother if they could participate in such a scheme. Provision might be made at

some future time to consider such cases on their individual merits.

684

683

Ibid at 5.

684

Ibid at 13-14.

228

Therefore, although allowances were being provided on the basis that it was in the

best interests of children to be kept at home, when it came to making provision for the

children of unmarried mothers, other, more conservative, moralistic considerations

prevailed. Unmarried mothers were presumptively under suspicion – not only did these

women have sex outside of marriage, but they chose to keep their children as opposed to

putting them up for adoption. As Shelley Gavigan and Dorothy Chunn have pointed out,

there was a hypocritical position taken by the Commission with respect to the

appropriateness of mothers earning a wage. While the maternal instincts and abilities of

middle class mothers were valorized, low-income mothers were criticized if they did not

engage in at least some sort of paid work to keep themselves or their children from

becoming a charge on the state. The fact of a single mother engaging in paid labour was

then taken as a sign of a lack of maternal instinct, naturalizing a connection between

privileged domesticity and maternal instinct. As Chunn and Gavigan explain:

In Nova Scotia, for example, there was ‘a general prejudice against wage-earning

mothers’; the Reports of the Commission on Mothers’ Allowances adopted a

contradictory position: they stated that engaging in wage labour and taking in

boarders was ‘inappropriate’ for mothers, but ‘accepted the belief that a mother

should be able to support at least one child.’ Joan Sangster has also identified the

social stigma as well as the economic marginalization suffered by single mothers,

even widows. If women on mothers’ allowance took in supplementary wage work,

‘they were criticized for “taking jobs away from others”’ and ‘criticized by other

citizens, including women, for taking state money rather than working!”

685

While visiting and investigation would be essential to determine whether members

of groups 1 to 4 from the Commission’s classification scheme should receive an allowance,

special scrutiny for the request of the unmarried mother for support. As Suzanne Morton

explains:

There was a willingness to support certain single mothers [ie., groups 1 to 4], albeit

in a parsimonious and often highly intrusive manner, but these indigent women

685

Shelley AM Gavigan and Dorothy E Chunn, “Women, the State and Welfare Law: The Canadian

Experience” in Shelley AM Gavigan and Dorothy E Chunn, eds, Legal Tender of Gender, supra note

41 at 60.

229

were not considered responsible or accountable for their own lack of a husband and

male breadwinner. Indecent sexual conduct or perhaps, more accurately, the ill

fortune of becoming pregnant and not marrying the father made other needy

women ineligible.

686

The Commission’s final report would prove to be quite influential. Their typology

of mother-headed households would remain in Nova Scotia’s social assistance legislation

until the mid-1960s. The first scheme of mother’s allowance that was passed in Nova Scotia

– and indeed, the first piece of social assistance legislation in the province – provided for

allowances to widows and to the wives of disabled men. The Mothers’ Allowances Act

established an Advisory Commission which was in charge of inquiring into, and deploying

visitors and investigations to assess the merits of, an application by a mother.

687

The Act

provided that a widow, and the wife a man “who by reason of permanent (physical or

mental) disability is unable to support his family”

688

could apply for allowances “not

exceeding eighty dollars a month”.

689

Female kin guardians such as grandmothers, sisters,

aunts or other “suitable persons” were eligible to apply for allowances for the care of

orphans.

690

Mothers and guardians were not entitled to appeal the decisions of the

Director of Mothers’ Allowances,

691

thereby removing the provision of welfare from

oversight

686

Morton, “Nova Scotia and Its Unmarried Mothers”, supra note 571 at 331.

687

Section 3(1).

688

These families, however, were not provided for until the Mothers’ Allowances regulation in 1943

expanded the definition of “widow”: see SNS 1943, c 26.

689

Section 4(1).

690

Section 4(1)(b).

691

Section 7.

230

Unmarried mothers would not be entitled to social assistance until 1966.

692

Furthermore, the original Mothers’ Allowances Act explicitly deemed ineligible First

Nations and immigrant women. The ineligibility of these women and unwed mother-

headed households meant that until the passage of the Social Assistance Act in 1966, these

families were still subject to the Poor Law. Statistics from the 1930s in Halifax, for

example, reveal pregnant women resident in the Halifax Poor House into that decade.

693

Unmarried mothers could also turn to the charitable institutions in Halifax, including the

Halifax Infants Home and the Home of the Guardian Angel. In effect, then, from the 193os

until the mid-1960s there was a two-tier system of assistance provided to mother-headed

households: the “worthy” would receive provincially supported and administered

allowances, while the “unworthy” were subject to the Poor Law.

692

See Social Assistance Act, RSNS 1967, c 284.

693

Morton, “Nova Scotia and Its Unmarried Mothers”, supra note 571 at 335; furthermore, in her

article on the history of welfare reform before the passing of the Canada Assistance Plan, Janet

Guildford provided the following illustration of the application of the Poor Law to persons ineligible

for provincial social assistance:

Until the 1960s, then, needy families were inadequately supplied with income assistance,

and had to rely too often on the Poor Law institutions, the county or municipal homes.

Throughout the province, these poorhouses were an important and troubling aspect of

welfares provision. Most of these institutions dated back to the late nineteenth century, and

a significant majority of them also served as chronic care mental hospitals. In the 1940s

and 50s, most municipal homes accommodated a miscellaneous population of ‘sane

paupers’ and the ‘harmless insane.’ Little segregation was effected, and the homes served a

mixed population of patients who were mentally challenged or chronically ill, as well as

unmarried mothers, prostitutes, juvenile delinquents and the elderly poor. No provincial

financial assistance was available to the municipalities to help with the costs of these

institutions and so, in poorer counties, the buildings had been allowed to deteriorate

dreadfully.

Conditions in many of the homes were appalling, and they became a favourite target of

reformers. There were a number of detailed studies of poorhouses in the 1940s and 1950s.

The first was completed in 1944 by George Davidson as part of the Dawson Commission

Report. After visiting nine of the municipal homes in the province, he wrote: ‘In general the

institutions present a depressing appearance on the inside…are poorly and inadequately

staffed both as to numbers and as to quality of personnel, and serve, on the whole, as little

more than indiscriminate dumping grounds for all the various types of unfortunate misfits

who happen to be a burden on the community.’ [citations omitted]

See Guildford, “The End of the Poor Law”, supra note 671 at 55.

231

This two-tier system of welfare was consonant with the second-class status to

which the children of unmarried mothers were generally subject at the time. The common

law family required a paternal head (who could support the family financially) married to

the mother in order to be recognized as a legal family and accorded the privacy and

autonomy accorded to the legitimate family. The unmarried mother-headed family did not

exist as a legitimate family with full rights to privacy and autonomy. The children of

unmarried mothers were referred to as bastards or illegitimate children and were under

severe legal disabilities, including the inability to inherit property. In the 19th century,

especially in agricultural economies such as Nova Scotia’s, this inability would have

adverse financial consequences. Pursuant to Maintenance of Bastards Act and then

Illegitimate Children’s Act, any ratepayer in a poor district in which a woman had

settlement could bring a public action to have the mother brought before the court and

attest to the identity of the putative father. As Suzanne Morton has described, these could

often be humiliating experiences, such as one case in Lunenburg county which was later

described as having “’tore every shred of self-respect’ from a woman who had had a child

out of wedlock, publicly labelling her promiscuous and immoral.”

694

It was not until 1951 with the passing of the Children of Unmarried Parents Act

695

that the “civil liability of fathers,” to provide for the “medical and other expenses connected

with the birth of the child, its maintenance and education,”

696

was enforced for illegitimate

children. The Act empowered unmarried mothers to bring applications to claim

maintenance and to have this maintenance paid directly to them as opposed to the

694

Morton, “Nova Scotia and Its Unmarried Mothers” ibid at 332.

695

RSNS 1954, c 31.

696

Ibid, s 27(1).

232

overseers of the poor.

697

Where the child and mother were the responsibility of the

overseers of the poor or the Department of Public Welfare, however, the filiation

proceedings remained under public control. Nevertheless, the legislation did help to

legitimize the unmarried mother-headed family in part by giving her a right to apply for

maintenance from the father directly, without having to first apply for settlement under

the Poor Law.

Unmarried mothers and their children were not, however, accorded rights to

publicly provided social assistance. By default, therefore, where they could not sustain

themselves with the mother’s work, the father’s maintenance, or help from family, they

were still subject to the Poor Law for another 15 years. Unmarried mothers would only

become eligible to receive social assistance in 1966, and then only when federal money was

made available to the province through the Canada Assistance Plan.

698

Until this time,

responsibility for the poverty of unmarried mother-headed families was not seen as a

rightful public concern, but rather, a private problem to be handled by enforcing child

maintenance, and failing that, by appeal to the municipal Poor Law system. Furthermore,

social assistance would not be extended to the wives of men who had deserted the family

until 1956. The message to these families was clear: the poverty of unwed and deserted

mothers was their own personal responsibility and would not be addressed through public

support.

This discretionary and moralizing rationale behind mothers’ allowances, however,

was not necessarily the same rationale as lay behind the provision of other types of social

assistance at the time. With such heavy state involvement in the economy during the wars,

697

Ibid, s 32.

698

Fitzner, supra note 138 at 61; Department of Public Welfare, Welfare Services in Nova Scotia

(Halifax: Department of Public Welfare, 1965); Senior Scribes, supra note 266 at 27-28.

233

and especially World War II, state assistance was thought of not just in terms of emergency

relief, but as “a vital element of the smooth functioning of the wartime economy”.

699

During

the war the federal government had created the Dependents’ Allowances program for

families of those in the armed forces, built homes for servicemen, paid the costs of daycare

so women could move into the labour force and fill the vacuum left by men overseas.

700

the early 1940s, the federal government was dedicated to devising a social security plan

that would aid in the post-war reconstruction. The year 1940 saw the introduction of

Unemployment Insurance, which was the largest social security program Canada had yet

implemented, covering 75% of all wage-earners.

701

In 1944, the Federal government

instituted the Family Allowances Act which provided a benefit for each child under the

age of 16.

702

The aim of the allowance was to provide for minimum requirements for all

children such as clothing and food.

703

The program was the first universal assistance

program instituted in Canada. Benefits were provided to all Canadian born children

regardless of any other eligibility criteria. The post-war era also saw the introduction of

universal Old Age Pensions and the administration of a system of national health grants

from the federal government to the provinces.

704

Therefore, while the welfare state was

expanding, especially into the postwar years, indicating an acceptance of the need to

socialize the inherent risks of the economy, mothers’ allowances remained heavily

moralized scheme of assistance.

699

Guest, The Emergence of Social Security, supra note 207 at 105.

700

Ibid.

701

Ibid.

702

Little, No Car, No Radio, supra note 68 at 109.

703

Guest, The Emergence of Social Security, supra note 207 at 129.

704

Ibid.

234

The later war years also saw the bureaucratization and centralization of public

assistance in Nova Scotia. In 1944, the Department of Public Welfare was established and

was assigned all provincial social welfare matters.

705

Ernest Blois, who had been appointed

the Director of Mothers’ Allowance since 1930 and then the Director of Old Age Pensions

in 1933, was appointed the first Deputy Minister of the Department. On December 1, 1944,

H.S. Farquhar was appointed Director of Old Age Assistance and Fred MacKinnon would

become the Director of Child Welfare and Mothers’ Allowance.

706

MacKinnon is seen as a

pioneer of the modern system of welfare in Nova Scotia and would serve the province for

55 years as a public servant until his eventual retirement as deputy minister in 1995. He is

generally seen as a strong advocate, largely responsible for the centralization of public

assistance in Nova Scotia, including both social and child welfare assistance in the

province.

707

The Canadian welfare state continued to grow in the post-war years. In 1956, the

federal government passed the Unemployment Assistance Act which provided that

agreements could be entered into between the federal government and the provinces

whereby the provinces would be reimbursed for half their expenditures on assistance to

the unemployed. It is noteworthy that payments for Mothers’ Allowances were not covered

under this cost sharing arrangement, thus creating a two-tier structure of welfare in the

provinces that accepted the agreement.

708

705

Department of Public Welfare, supra note 698 at 29.

706

Ibid at 30.

707

Nova Scotia Association of Social Workers, supra note 678.

708

Senior Scribes, supra note 135 at 28.

235

Two years later in 1958, Nova Scotia passed the Social Assistance Act

709

which

provided not just for cost sharing between the provinces and the federal governments, but

for contributions from municipal levels of government, as well. The passage of the Social

Assistance Act saw the rescission of the Poor Law and the introduction of a modern system

of social assistance including the provision of assistance to deserted wives. Expenditures

on assistance grew from $500,000 in 1956 to $1.5 million in 1964.

710

In 1964, the

Department of Public Welfare was divided into six divisions: Old Age Assistance, Social

Assistance, Child Welfare, Social Development, Field Services, and Office Services.

711

Despite the hailed elimination of the Poor Law in the 1958 Social Assistance Act, it would

not be until 1966 that cost sharing for Mothers’ Allowances would be introduced, with the

passage of the Canada Assistance Plan (the “CAP”). The CAP allowed for the provision of

assistance to unwed mothers finally to be taken out of the municipal social assistance

provisions in the 1966 Social Assistance Act, finally bringing responsibility for these

families under the auspices of the provincial government.

712

Therefore, the post-war years in Canada saw the reconceptualization of the

relationship between the individual, family and the state. The state was understood as

having a greater responsibility for protecting the individual against the risks of the

economy and a greater role in maintaining supports for the family. Unlike notions of

privacy under laissez-faire capitalism, post-war notions of autonomy did not simply mean

freedom from state intervention or the “freedom to be left alone.”

713

A socialized notion of

709

RSNS 1967, c 284.

710

Department of Public Welfare, supra note 698 at 32-33.

711

Ibid at 33.

712

Senior Scribes, supra note 135 at 28.

713

See, for example, Louis D Brandeis and Samuel D Warren, “The Right to Privacy” (15 December

1890) 4.5 Harv LR 193; Lochner v New York (1905), 198 US 45.

236

autonomy for the citizenry emerged which saw the state as responsible for the risks borne

by individuals and their families. Welfare experts of the time believed that the support of

families was in the best interests of the citizenry and the country as a whole. While the

juvenile delinquents regime was focussed on the individual child in a quasi-criminal justice

system, the post-war era marked a renewed emphasis on families as serving the public

interest.

Not all families, however, would be deemed to operate in the best interests of their

children or the state. In the Report of the Commission on Mothers’ Allowance, the

Commission had recommended in 1921 that friendly visiting and investigation were

necessary to assure taxpayers that assistance was going to good use and that those

receiving assistance were “suitable” persons to have custody and care of their children.

714

Even then, certain mothers, by virtue of their marital status were deemed presumptively

unfit.

715

This recommendation was instituted into law with the introduction of the Mothers

Allowance Act in 1930 and continued to determine eligibility to mothers’ allowances well

into the post-war years.

716

In the next section I will discuss how newly professionalizing

child welfare services, with their knowledge of child development and family casework

became an importance means to determine the suitability of many mother-headed

families.

717

Furthermore, these services assisted in bringing moralized determinations of

deservedness in line with more objective determinations of “fitness”.

The double-edged sword that was the mothers allowance has been described by

historian Ann Vandepol in the following way:

714

Report of Commission on Mothers’ Allowances, supra note 677 at 16-17.

715

Ibid.

716

Mothers’ Allowances Act, RSNS 1954, c 182, s 4(2)(b)(iii).

717

James Struthers, “A Profession in Crisis: Charlotte Whitton and Canadian Social Work in the

1930s” LXII (1981) Can Hist Rev 169 at 169-171.

237

The mothers' pension program can hardly be described as an unqualified victory

for working class families. Not all who deserved pensions received them, and for

those who did, the price paid for this service was often outside scrutiny of family

behavior. The program restored socialization and child-rearing functions to

working-class parents, but indirectly authorized public officials and caseworkers to

supervise how mothers carried out these tasks. Pensions had a dual and somewhat

contradictory effect: they reconstituted the family and then cast a veil of

surveillance over it. Nevertheless, in contrast to earlier methods of caring for

dependent children, income support for widows did allow thousands of families to

remain intact.

718

Furthermore, as Gavigan and Chunn have argued, even when mothers’ allowance

eligibility was expanded in the 1950s, the way that this eligibility operated served to

reinforce the idea that primary responsibility for the poverty of mothers was an individual

one.

719

Mothers’ Allowances were provided on a temporary, discretionary and therefore

“residual” basis, reinforcing that at base, the family and individual – not the state – were

responsible for the poverty of mother-headed families.

720

As the next section will discuss, the post-war years in Halifax were also years of de-

institutionalization and the return of child caring to the private sphere of the family. The

denominational institutions faced increasing criticism of their ability to provide for the

best interests of children, and they were no longer able to support themselves financially.

The move to “familialize” the child-caring work of the poor in Halifax, through child

welfare work and social assistance helped to address both of these problems. The Halifax

Children’s Aid Society, originally a child protection organization overshadowed by other

philanthropic societies and the denominational institutions in Halifax in the early 20th

century, became an integral part of the child welfare regime in Nova Scotia. The

organization, with its professionalized “preventive” casework, friendly visiting and

718

Vandepol, “Dependent Children”, supra note 252 at 232.

719

Gavigan and Chunn, “Women, the State and Welfare Law”, supra note 41 at 62.

720

Ibid.

238

placement of children from indigent families, found itself at the intersection of de-

institutionalization and the modernizing system of social assistance.

De-Institutionalization, Familialization, and the Changing Role of the Halifax

Children’s Aid Society

Skepticism about the efficacy of institutions in providing for the best interests of

children had arisen in Nova Scotia decades before the process of de-institutionalization in

the post-war years. In fact, the Final Report of the Commission on Mothers’ Allowance in

1921 quoted extensively from proceedings on the Mothers’ Allowance in Ontario, where a

member of the clergy spoke about the evils of institutional care:

My experience with institutional work is that it is one of the biggest mistakes that

can possibly be to place any child in an institution, if it is possible to keep it out. I

would go so far as to say that the best institution under the best management is not

equal to the poorest home, provided that home be morally correct. If the

surroundings of the home are good, if the environment is good, no matter about

the poverty, I say, that home is better than the best managed institution I know of.

So that we are all agreed, I think, those who are connected with institutional work

that it is a sin, a crime, a hardship, an injustice to institutionalize any child, unless

as a last remedy, where all things else fail. Under present conditions we are obliged

to put children into institutions who really should not be there. If any such scheme

of mothers’ pension were in force, provision would be made for giving proper home

training, and there is no question that these children would be much better citizens

of the country.

721

Consistent with a conservative maternalist ideology, it was believed that it was in

the best interests of children to be raised by a “fit and proper” mother in their own home.

Child welfare experts such as J.J. Kelso in Ontario had for some time been railing against

the institutionalization of children.

722

Long term institutionalization, it was argued, would

impair the proper development of the child and was an unfit environment for ensuring

their proper socialization.

721

Report of Commission on Mothers’ Allowances, supra note 677 at 7.

722

See Jones and Rutman, In the Children’s Aid, supra note 143.

239

This skepticism about institutionalization was also evident in 1924 when an

investigative journalist for the Halifax Citizen published an exposé on abuse at the

Industrial School, entitled, “Fiendish Cruelty Practised upon the Inmates of the Halifax

Industrial School.”

723

The article detailed beatings, whippings and the case of one child

who had gone insane and been sent to the Nova Scotia Hospital because of the abuse.

724

Several days after the story broke, then Superintendent Ernest Blois held a two-week long

inquiry which heard further testimony of abuse, malnutrition and deplorable living and

working conditions at the school.

725

The testimony from the hearing was publicized by the

newspapers in Halifax, with such provocative headlines as “A Place of Torture – Not a

Reformatory”.

726

Yet, despite these revelations of horrible abuse and deplorable conditions the

institutions remained an integral part of the child protection system in Nova Scotia.

Indeed, the Nova Scotia Home for Colored Children was opened the same year that the

Commission on Mothers’ Allowances was hailing the family home as the proper

environment for the raising of children. It would still be several years until the Indian

Residential School at Shubenacadie would open.

The outcome of Blois’s inquiry into the Industrial School was not its closure, but

rather an insistence on its “modernization” and “professional direction” according to the

modern principles of child development theories.

727

The insistence on maintaining, yet

modernizing, the institutions sustained them as an important part of the City’s child

723

Lafferty, The Guardianship of Best Interests, supra note 436 at 3.

724

Ibid at 4.

725

Ibid.

726

Ibid.

727

Ibid at 145.

240

protection landscape into the 1950s. Lafferty reports that in 1945 there were just under

45o children in the city’s institutions (excluding reformatories) but by 1956 there were only

200 inmates.

728

The late-1940s and 50s was a time of increasing international concern over the

institutionalization of children, particularly in medical and child psychiatry quarters.

729

Child psychiatrists such as Dr. John Bowlby and Anna Freud, were conducting and widely

publishing the results of studies on the harmful effects of institutionalization on normal

child development.

730

The pervasive dislocation of communities and separation of children

from their parents during the world wars gave child development experts ample

opportunity to investigate the effects of parental separation on child development and

socialization. During the World War II, Anna Freud published several books on the effect

of the war on children. Having fled Vienna to London in 1938, she worked at the

Hampstead War Nurseries where she recorded her observations of the children left there

by parents sent off to war, working for the war effort during the day, as well as orphaned

children.

731

In her intense observations of these children she began to develop the

beginnings of “attachment theory” still in use in child development discourse today. In

particular, Freud was becoming keenly aware of the emotional impact on children of

separation from their parents.

732

728

Ibid at 195.

729

Denise Riley, “War in the Nursery” (1979) 2 Feminist Review 82 at 93.

730

Ibid at 182.

731

Nick Midgely, “Anna Freud: The Hampstead War Nurseries and the Role of Direct Observation

of Children for Psychoanalysis” (2007) 88.4 Int J of Psych 939 at 940.

732

Ibid at 948.

241

After the war, Dr. John Bowlby continued to develop Freud’s theories on the

emotional consequences of separation and residential care, culminating in his theory of

“maternal deprivation”. In 1949, the World Health Organization commissioned Bowlby to

undertake a study of children displaced by the war, that is, “orphaned or separated from

their families for other reasons and need[ing] care in foster homes, institutions or other

types of group care.”

733

In the study, originally published in 1951, Bowlby explicated his

theory of maternal deprivation:

[W]hat is believed to be essential for mental health is that the infant and young

child should experience a warm, intimate, and continuous relationship with his

mother (or permanent mother-substitute) in which both find satisfaction and

enjoyment. Given this relationship, the emotions of anxiety and guilt, which in

excess characterize mental ill-health, will develop in a moderate and organized

way. When this happens, the child’s characteristic and contradictory demands, on

the one hand for unlimited love from his parents and on the other for revenge upon

them when he feels that they do not love him enough, will likewise remain of

moderate strength and become amenable to the control of his gradually developing

personality. It is this complex, rich, and rewarding relationship with the mother in

the early years, varied in countless ways by relations with the father and with

siblings, that child psychiatrists and many others now believe to underlie the

development of character of mental health.

A state of affairs in which the child does not have this relationship is termed

‘maternal deprivation’. This is a general term covering a number of different

situations. Thus a child is deprived even though living at home if his mother (or

permanent mother-substitute) is unable to give him the loving care small children

need. Again, a child is deprived if for any reason he is removed from his mother’s

care. This deprivation will be relatively mild if he is then looked after by someone

whom he has already learned to know and trust, but may be considerable if the

foster-mother, even though loving, is a stranger. All these arrangements, however,

give the child some satisfaction and are therefore examples of partial deprivation.

They stand in contrast to the almost complete deprivation which is still not

uncommon in institutions, residential nurseries, and hospitals, where the child

often has no person who cares for him in a personal way and with whom he may

feel secure.

734

733

Bowlby, Maternal, supra note 661 at 6.

734

Ibid at 11-12.

242

Bowlby reported that while the partial deprivation could cause anxiety, feelings of

revenge, guilt and depression, the consequences of complete deprivation were “far-

reaching effects on character development and may entirely cripple the capacity to make

relationships.”

735

Bowlby’s analysis was decisive: contrary to the original intentions of

institutional care, such care was unable to produce the normal character development

necessary for the production of the normal adult.

By the late 1940s and early 1950s, so pervasive was the critique of the

institutionalization of children, that the institutions themselves advocated curtailing their

services and serving only as temporary shelters for children waiting to be placed or

children suffering emotional disturbances.

736

By this time, the institutions were

experiencing acute financial difficulties. As Lafferty reports, in 1947 “the CAS estimated

that the annual cost of raising a child was approximately $492.12. However, the combined

municipal and provincial grant for neglected children to the institutions was only $5 per

week, or $260 per year.”

737

As a result, the general physical conditions of the institutions

suffered, but so did the care that could be given to children. Historical reports from the

Halifax Infants’ Home indicated that “’[o]ne of the biggest problems’ identified in the

1940s ‘was the inability to give sufficient individual attention to the toddlers group and

…[a] lack of funds was the chief reason.’”

738

The degenerating conditions of the institutions

were proof positive of the dangers of institutionalization raised by child development

experts. Finally, the 1960s saw the closing of the asylums and institutions of the 19th and

early-20th century in Halifax, including: the Halifax Infants’ Home (1960); Halifax Visiting

735

Ibid at 12.

736

Lafferty, The Guardianship of Best Interests, supra note 436 at 181.

737

Ibid at 167.

738

Ibid.

243

Dispensary (1965); Indian Residential School at Shubenacadie (1967); and the Protestant

Orphanage (1969).

739

One noteworthy exception was the Nova Scotia Home for Colored

Children which continued to operate. As Lafferty explains, the Home “moved through the

period with many of its program goals virtually unchanged. Ethnic prejudice in the postwar

years trumped even the now-trusted claims of social workers about the damaging effects

of congregate care.”

740

But suitable adoptive and foster homes were scarce in the years leading up to the

culmination of de-institutionalization.

741

Ensuring that suitable mothers were not placing

their children with the CAS or in the city’s denominational institutions by reason of poverty

was an important means of helping to reduce the number of children within these

institutions. Mothers’ Allowances, then, became one prong in the strategy to de-

institutionalize the child welfare regime in place in Halifax in the post-war era. The second

prong in the strategy was to revitalize CAS “to carry out the work of protection and

prevention” while ensuring that the institutions performed a merely residual role.

742

Home

visiting and the imparting of this new psychiatric knowledge on the family would also

ensure that Mothers’ Allowance was only going to fit and proper families who were

providing requisite maternal attachment for well-developed children.

743

739

Senior Scribes, supra note 135.

740

Lafferty, The Guardianship of Best Interests, supra note 436 at 194.

741

Ibid at 187.

742

Ibid at 192.

743

For instance, in her chapter on reform of the Poor Law, Janet Guildford explains that social

workers were opposed to the Poor Law in part because of the “problems of having untrained and

unpaid overseers of the poor make decisions about people’s eligibility for relief.” See Guildford,

“The End of the Poor Law”, supra note 671 at 59.

244

The caseload of the CAS had been steadily rising from the late-1920s to the post-

war era. Data from a retrospective study of the CAS of Halifax for the years 1920 to 1970

indicates that in 1928 the caseload of the Halifax CAS increased dramatically. Although

the CAS had a large caseload only 27 were made wards of the CAS by the court that year.

744

This means that the other almost 1100 cases involved the supervision and visiting of

families. The retrospective CAS study provides the following explanation:

During 1928, there were 1,122 active cases, of which 918 were new cases. The work

involved cases of reported neglect of children by parents, referrals for removal of

children from homes because of poverty, cases involving children of widows, and

of children who were behaviour problems. In this latter category the need was felt

for a behaviour clinic where the parents could be instructed as to the proper

treatment for these difficult children. Many referrals were received for temporary

care of children because of illness of the mother and these children were placed in

the children’s institutions in the City. The work also included supervision of many

children (154) who were with parents, relatives, and in boarding homes.

Investigation of 86 foster homes was completed, and in this program the Society

was not able to develop boarding home care as it would like mainly because of the

lack of funds.

745

It was the next year, 1929, that the CAS was asked to become involved in

introducing the Mothers’ Allowance regime for needy widows and for the wives of men

who were incapacitated (passed the year after that in 1930).

746

For the year 1929 – the start

of the Depression – the number of cases of the CAS had risen to 1377. After the passing of

the Mothers’ Allowances Act the work of the Agency increased by approximately 100 cases

a year.

747

By the end of the Second World War, the CAS caseload in the city had risen to

2261 cases.

748

For the first decade after the war, the caseload of the Society continued to

744

Jacobson, A Better Deal for Children, supra note 495.

745

Ibid at 16.

746

Ibid.

747

Ibid at 19, 21.

748

Ibid at 24.

245

rise, as did the number of wards of the Society. By 1950 there were 278 children who were

made wards of the Society.

749

Reports from the CAS indicate that after the war a myriad of

social problems increased pressure on the Agency to remove children from the home

because of “economic reasons”.

750

The social problems contributing to calls for removal of

children included “re-adjustment of the father to the home, an increase of unemployment,

a housing shortage, poor housing standards, health problems, the absence of children from

school because of a lack of clothing.”

751

Despite the increase in the number of children made wards of the CAS, the post-

war work of the Society focused not on institutionalizing and removing children from the

home, but rather on preventive social work to keep the children – of certain families – in

the home.

752

While classical liberalism was bound up with notions of the competitive,

749

Ibid at 30.

750

Ibid at 28.

751

Ibid at 28.

752

As Shirley Tillotson’s chapter on “The Eclipse of Gwendolyn Lantz” explains, however, this

reform at Halifax CAS was not possible without the eventual firing of the head of Halifax CAS in

1952. Tillotson provides a pertinent example of Lantz’s child protection philosophy which presented

an obstacle for the preventive work of the CAS into the 1950s:

In November 1946, Lantz had taken into CAS care a boy whose parents had separated and

whom she deemed was neglected. She placed him in one of the Halifax orphanages. Just

over a month later, in January 1947, his parents reconciled and asked to have their child

returned. Lantz refused, asserting that they could not provide a suitable home. Over the

next fifteen months they continued to appeal to Lantz. She persistently rejected their

appeals. In March 1948, on request of the President of the CAS, MacKinnon’s department

investigated the parents and their home. MacKinnon’s department served as the CAS for

Halifax County and so had on its staff several social workers who routinely did these sorts

of investigations. The two social workers assigned to assessing the case both concluded that

the home was ‘completely satisfactory’ and recommended that the boy be returned to his

parents. However, it was only after nearly another full year had passed, in July 1949, more

than two years after he had been initially apprehended, that Lantz gave consent to have

the boy returned to his home. MacKinnon concluded his summary of the case by observing

(with what must pass for passion in a civil service memo): ‘It is extremely difficult to

rationalize this kind of action or to understand [Lantz’s] reasoning in this particular case.’

In this story, MacKinnon was illustrating one of the general complaints about Lantz – that

she put children in institutions and left them there for so long that their ties to their families

and communities were deeply harmed.

246

abstract individual, the individual of the burgeoning welfare state was “the embodied

individual of the Keynesian welfare state with concrete material needs and diverse cultural

commitments”.

753

As Hester Lessard explains in her article, “Empire of the Lone Mother”

the effect that this new thinking about the individual and the state's role in providing for

the individual, had on child protection and practice was “a more explicit and expanded

focus on welfare rather than one limited to protection”.

754

In commenting on Ontario’s

1954 Child Welfare Act

755

Lessard argues that, as opposed to earlier legislation the ideology

of public responsibility of the era of the welfare state was present in Ontario’s 1954 Child

Welfare Act.

756

So too, did this ideology of public responsibility and welfare permeate Nova

Scotia’s de-institutionalizing child welfare scene. By the mid-1950s, as Shirley Tillotson

has explained, “Public and private responsibilities in child welfare were becoming ever

more thoroughly mixed” and provincial funding of the Halifax CAS alone had more than

quadrupled since the beginning of the decade.

757

The mid-1950s saw social workers drawing upon preventive casework and relying

on non-material means to keep the family together: providing diagnostic and therapeutic

support in an aim to keep the family together. As the CAS Report indicates:

The preventative side of the work of the agency was stressed more and more during

the last few years of this period [1953], and resources utilized to find ways to

See Shirley Tillotson, “Democracy Dollars, and the Children’s Aid Society: The Eclipse of

Gwendolyn Lantz” in in Judith Fingard and Janet Guildford, eds, Mothers of the Municipality:

Women, Work, and Social Policy in Post-1945 Halifax (Toronto: University of Toronto Press, 2005)

76 at 87.

753

Lessard, “Empire of the Lone Mother”, supra note 116 at 732.

754

Ibid at 735.

755

SO 1954, c 8.

756

Lessard, “Empire of the Lone Mother”, supra note 116 at 735.

757

Tillotson, “Democracy Dollars, and the Children’s Aid Society”, supra note 752 at 97.

247

prevent dependency, neglect and delinquency of children, to know the assets and

to learn how best to make use of them – not alone the assets of the child within

himself, but also those of his whole family situation. Some of the situations faced

and presenting problems were presented as effectively as possible. Many marital

problems were presented and counseling attempted, but hampered because of lack

of staff. However with some families, referrals were made to other community

resources. The agency was often approached by the deserted wife who had little or

no means of support, and there was no way at this time by which financial aid could

be secured in order to preserve the family unit. This situation should have been met

as the Mothers Allowance meets the needs of the widow and her children, and did

become a reality in 1956 when the Social Assistance Act became law.

758

The therapeutic side of preventive work was informed by the increasingly

professionalized nature of social work in the province. Nova Scotia’s public welfare state

developed in tandem with an expanding and professionalizing field of social work in the

1940s and 1950s. In Nova Scotia, 1941 saw the establishment of the Maritime School of

Social Work.

759

1944 saw the CAS form a province-wide Association of Children’s Aid

Societies and receive more funding from the newly-created Department of Public Welfare.

The ad hoc and voluntarist nature of philanthropic child protection work that was in place

in the late-19th and early 20th century, was overtaken by an increasingly bureaucratized,

centralized and professionalized social welfare institution in the 1940s and 1950s.

760

No longer would the good will of charitable volunteers suffice to assist families.

Instead, the belief from social assistance quarters, and increasingly, from CAS quarters in

the mid-to-late 1950s, was that a trained social worker with the skill to diagnose and work

within the family was needed in order to understand and ameliorate the complex problems

leading to poverty and neglect.

761

The professional social worker had to have “some

acquaintance with psychology, mental testing, mental hygiene, sociology, dietetics,

758

Jacobson, A Better Deal for Children, supra note 495 at 32.

759

Fitzner, The Development of Social Welfare, supra note 138 at 53.

760

Lubove, The Professional Altruist, supra note 507 at 158.

761

Gleason, supra note 670 at 42.

248

biology, medicine, and industrial conditions.”

762

Whereas volunteers used a “crude

classification (worthy, unworthy, drunkard, pauper, deserter)”, social workers used

individual casework to investigate the background of each case and discover what ailed the

family.

763

As Roy Lubove explains in his book, The Professional Altruist:

Case records had to be kept, demonstrating the steps in investigation and

treatment, not only as a guide to the agent or visitor, but as a basis for future

research into the causes of poverty and of individual and family demoralization.

Facts and more facts were needed, according to a Conference of the Boston

Associated Charities, for “two-thirds’ of the errors in philanthropy work arise from

misinformation or lack of information. In thorough preliminary investigation,

followed by an intelligent, sympathetic searching into the facts on the visitor’s part,

lies our chief strength as a practical body of scientific workers.”

764

While previously, psychiatric and psychological knowledge developed in the

children’s homes, nurseries and asylums had focused on the individual child, the family

was becoming the focus of this scientific casework. The family was understood as the site

of the production of either the emotionally disturbed or well-adjusted child.

765

As one

historian explains:

During the 1950s and 1960s, a group of clinicians in the United States developed a

psychotherapeutic approach to treating mental illness that located the source of

pathology and the potential for cure in the cyclical patterns of family interactions

rather than in the biological or psychological characteristics of an individual. Their

approach became known as family therapy, and in the field’s development we can

see many of the tensions that defined postwar America in a new way.

766

762

Ibid.

763

Ibid at 20.

764

Ibid.

765

For a thorough discussion see: Deborah Weinstein, The Pathological Family: Postwar America

and the Rise of Family Therapy (Ithaca: Cornell University Press, 2013).

766

Ibid at 2. At 16 Weinstein states the following:

Family therapists produced a new definition of what a family could be— namely, a unit of

disease, which had previously been contained in individual bodies. Furthermore,

twentieth-century American views of the family as the site of both reproduction and

socialization, nature and culture, shored up the legitimacy of therapists’ focus on the family

as such. The new definition of family as a unit of disease not only transformed the category

249

The preventive work of the CAS in the post-war years was influenced by this emphasis, on

the one hand, on keeping the “natural” family unit together through casework and family

therapy, but on the other hand, an understanding that this natural family unit was also the

source of pathology.

Increasingly, however, one member of the family came under scrutiny in the search

for the pathological counterpart to the natural, normal family: the unwed mother. In the

mid-40s and 50s, psychiatric knowledge focused on the deficits of the unwed mother and

the beneficence of her giving up her child for adoption. The growing influence of

psychology and psychiatry on social work and the provision of welfare services meant that

medical definitions and treatment of unwed mothers were starting to take center stage.

For example, Dr. John Bowlby described and diagnosed the woman who became

pregnant out of wedlock as “neurotic” or “psychopathic or defective”

767

, “emotionally

disturbed”, “immature” and “antisocial”.

768

In language echoing earlier calls for the study

and prevention of feeblemindedness, Bowlby warned that intervention was needed –

either through prevention of birth or through adoption

769

- as these antisocial characters

were sure to breed another generation of deprived and no doubt antisocial characters:

of “family” and the meaning of “disease” but also prompted the development of new

therapeutic techniques and goals. By shifting their clinical acumen from the individual to

the family, early family therapists opened up space for a new set of practices that would

then be appropriate for treating family-based disease. In so doing, they reconfigured the

relationship between midcentury therapeutic culture and contemporaneous concerns

about family life. That reconfiguration happened not just in prescriptive literature about

what families should be but in the active realm of therapeutics and the development of new

practices and techniques that shaped what happened in therapy sessions during the 1950s

and 1960s.

767

Bowlby, Maternal Care and Mental Health, supra note 661 at 94.

768

Ibid at 95.

769

Ibid at 96.

250

[I]n a Western community, it is emotionally disturbed men and women who

produce illegitimate children of a socially unacceptable kind. Moreover, they give

further prominence to the social process already emphasized as being of the

greatest consequence for the production of children who will grow up deprived of

maternal care – the process whereby one generation of deprived children provides

the parents of the next generation of deprived children.

770

This psychiatric position on the psychological influence of the unwed mother

informed case work by the CAS in Halifax. While mothers’ allowances allowed children to

stay in the home of deserving mother-headed families, this psychiatric discourse on the

abnormal mothering of the unwed mother helped to deem her as presumptively unfit.

Early intervention with unwed mothers meant that children could be placed into normal

and morally upright homes through adoption. Providing adoption services to unwed

mothers became seen as a necessary corollary to the casework of the Society:

More emphasis was placed in working with the unmarried mother in dealing with

her emotional problems, their (sic) feelings and attitudes. In the adoption program

it was gratifying to see that 49 children were in adoption probation homes (of

whom about half were infants of unmarried mothers and the rest wards of the

agency).

771

Jacobson’s data from the CAS records reveals that in 1954, the Halifax CAS began

to provide “intensive casework service to the unmarried mother and assist them in

planning for their infants.”

772

Jacobson reports that in 1954 there were 96 children born of

unwed mother in Halifax. Of those, 16 were voluntarily placed for adoption, and 10 were

made wards of the agency.

773

Therefore, even in the midst of these processes concentrated

on “familialization” over a quarter of children born to unwed mothers were still being

relinquished, either voluntarily or forcefully, to the CAS.

770

Ibid at 95.

771

Jacobson, A Better Deal for Children, supra note 495 at 41.

772

Ibid at 34.

773

Ibid.

251

Jacobson’s data is also consistent with research conducted by historian Suzanne

Morton which reveals that after 1945, unwed mothers – particularly white unwed mothers

– were actively encouraged by the CAS to give their children up for adoption.

774

Interestingly, she notes that this was a complete about-face from the policy of the

maternity homes before 1945.

775

Before 1945, the Catholic Home of the Guardian Angel

and the Protestant Halifax's Infant Home insisted on mothers remaining in confinement

for six months after giving birth in order to ensure that they had the appropriate “mother

love” to engender a sense of responsibility in the mother for the child, helping to ensure

the child remained with the mother.

776

Morton writes that post-1945 the professional social

worker “sought to rehabilitate young girls through encouraging them to relinquish their

child and 'resume the roles of normative young women'.”

777

Experts at the time saw unwed

motherhood not as the consequence of a lack of reproductive education or means of birth

774

It is important to note, however, that the situation would likely have applied largely to white

unwed mothers. Research suggests that African Nova Scotian unwed mothers likely would have

kept their children and raised them in extended families. This in part was due to the fact that

adoptive placements for African Nova Scotian children would have been fewer than those for “able-

bodied” white children. See Susan B Boyd et al, Autonomous Motherhood?: A Socio-Legal Study of

Choice and Constraint (Toronto: University of Toronto Press, 2015) at 22-23.

As late as 1947 the lack of support for African Nova Scotian mothers as a result of racial segregation

was raised at the Halifax Infants’ Home board meeting. In her book, Lafferty details this concern:

In 1947, for example, “[t]he problem concerning [the] colored unmarried mother” and her

child was raised at a Board of Management meeting at the Halifax Infants’ Home. Limited

accommodation for infants, as well as long waiting lists at the Nova Scotia Home for

Colored Children (NSHCC), meant that black mothers were unable to get adequate services

and support, and it was evident that the colour-blind approach adopted by managers in the

early twentieth century had eroded.

See Lafferty, Guardianship of Best Interests, supra note 436 at 169.

775

Morton, “Nova Scotia and Its Unmarried Mothers”, supra note 571 at 337.

776

Ibid at 337.

777

Ibid at 338.

252

control, but of “a conscious form of rebellion or a manifestation of deep-rooted

psychological problems”.

778

While mothers’ allowances were provided to some mother-headed and functionally

mother-headed families under a veil of suspicion, they were not extended to unwed

mothers at all until the province received federal funds. Furthermore, when unwed

mothers asserted their need for assistance, this need was depicted as dependent and in

itself pathological.

779

In 1966, when the Minister announced that the province had

extended assistance to unmarried mothers, he also announced that child welfare casework

supervision would likewise be extended.

780

Therefore, the social stigma around unwed

motherhood was reinforced by psychological theories of “maternal deprivation” and

psychiatric evaluations that unwed mothers were immoral or emotionally disturbed.

781

This psychiatric construction served to move the moralizing about unwed mothers and

their promiscuous and unsavoury behaviour into objective, medicalized and normalized

terms. In turn, this normalizing informed and was in turn informed by their exclusion from

Mothers’ Allowances, their construction as “dependent” and therefore, the need to extend

surveillance over these families in the form of child welfare services.

In the 1950s, even before their acceptance on social assistance, this social stigma,

lack of social assistance and lack of family support would have meant many of these women

would not have been able to support their children alone. For many women adoption

would have seemed to be the only viable option. Research by Morton indicates that in 1950,

778

Ibid at 337.

779

Jeanne Fay, “The ‘Right Kind’ of Single Mothers: Nova Scotia’s Regulation of Women on Social

Assistance, 1956-1977” in Guildford and Fingard, eds, Mothers of the Municipality: Women, Work

and Social Policy in Post-1945 Halifax (Toronto: University of Toronto Press, 2005) at 143.

780

Ibid at 147.

781

Gleason, supra note 670 at 40.

253

while there were 1184 illegitimate births reported in Nova Scotia, the philanthropic homes

for unwed mothers only accounted for 358 infants.

782

She likewise reports that into the

1930s the Poor House register listed pregnant women in residence.

783

This construction of

unwed mothers as undeserving and dependent, not only had consequences in terms of a

repressive engagement with both child welfare and social assistance (not to mention

psychiatric) professionals, but their social and economic marginalization, as well as a

failure to address their needs through public assistance and public services, left their

children vulnerable to unregulated services. Amidst this social stigma and lack of support

emerged the scandal of the Ideal Maternity Home. The case of the Ideal Maternity Home

is a poignant illustration of the desperate situation many of these women found themselves

in, the lack of provincial support provided them, and the distrust these women had for the

CAS.

The Ideal Maternity Home in East Chester was a privately run home for unwed or

even poor, wed mothers. The Home facilitated private international and domestic

adoptions. Some estimates indicate that over the years 1500 children were born at the

Home in its almost 20 year history, beginning in the late 20s.

784

By the mid-1940s the

Home was the largest maternity home east of Montreal.

785

The Home provided a private

means for women to give birth out of the public eye but was plagued by scandal, with

stories of the murder of children, particularly disabled children that were thought to be

782

Morton, “Nova Scotia and its Unmarried Mothers”, supra note 571 at 334.

783

Ibid at 335.

784

Karen Balcom, “Scandal and Social Policy: The Ideal Maternity Home and the Evolution of Social

Policy in Nova Scotia in Nova Scotia, 1940-51” (2002) XXXI.2 Acadiensis 3 at 3.

785

Morton, “Nova Scotia and Its Unmarried Mothers”, supra note 571 at 336.

254

undesirable for adoption.

786

While these murders were never substantiated, records from

the time indicate terrible conditions and little to no assessment of adoption placements or

post-adoption services to women.

787

In 1946, the CAS investigated the Home and brought

many of the troubles there to light, resulting in the closure of the Home the following year.

Morton indicates that even though public welfare bureaucrats took great pains to publicly

shame and shut down the Home, many unwed pregnant and single mothers from the

Home were placed in the Halifax City Home or the poor house, indicative of these women’s

status as second class citizens.

788

The Ideal Maternity Home scandal became a flashpoint for bureaucrats such as

Fred MacKinnon, the Director of Child Welfare, to argue for maternity homes to come

under the control of Public Welfare through a licensing system, and for the reform of the

Illegitimate Children’s Act.

789

In the end, the situation gave rise to the regulation of

maternity homes in the 1950 Act for the first time. In 1951, the Illegitimate Children’s Act

was repealed and the Children of Unmarried Parents’ Act introduced, which gave unwed

mothers the ability to directly bring an action against the putative father for support. The

message from government continued to be that despite expanding eligibility for Mothers’

Allowances, financial responsibility for unwed mothers was a private, not a public

responsibility. Indeed, MacKinnon and the public welfare bureaucracy could have used the

Ideal Maternity Home scandal to argue for the need for public assistance for unwed

mothers but instead they used it to argue for a licensing system for maternity homes.

786

Ibid at 337.

787

Balcom, “Scandal and Social Policy”, supra note 784 at 12.

788

Morton, “Nova Scotia and Its Unmarried Mothers”, supra note 571 at 336.

789

Ibid at 336.

255

In 1944, a Royal Commission on Provincial Development and Rehabilitation

published a Final Report on improvements to public welfare in the province. Among the

recommendations was greater financial support to unwed mothers. Unlike MacKinnon,

Commissioner Davidson used the example of commercial maternity homes such as the

Ideal Maternity Home to highlight the need for both a recognition of the mother’s right to

keep her child and a social responsibility for unwed mothers.

790

He provided the following

critique of the plan to simply license commercial maternity homes.

791

It should be constantly kept in mind that the reason why commercialised maternity

homes come into existence and flourish is because no adequate social facilities are

available to provide the necessary care and help to the unmarried mother and her

child. It is not, therefore, sufficient to put out of business, or to establish minimum

control over, commercialised maternity houses operating in this field. . . . It is even

more important that the province should assume the responsibility of developing,

through its Child Welfare Branch and through the Children’s Aid Societies of the

province, a case work service that will adequately meet the needs of the unmarried

mother in her period of difficulty.

792

But as Karen Balcom has argued, Davidson’s arguments for greater self-determination for

single-mother-headed families may have been naïve and premature for conservative post-

war Nova Scotia. Balcom argues that Davidson’s recommendations

[i]gnored the very good reasons unwed mothers had for placing a high value on

secrecy and distrusting intrusive social workers. Approaching public officials for

help, even if those officials were sympathetic, meant braving public knowledge of

the pregnancy. It was difficult, for instance, for social workers to investigate the

mother and her background without alerting family and friends of her pregnancy.

Turning to social workers for help could only be as attractive as Davidson assumed

if there was a radical change in public attitudes toward the single pregnant woman,

an unlikely revolution in thought and practice.

793

790

Balcom, supra note 793 at 29.

791

See George Davidson, Report on Public Welfare Services in Nova Scotia, Royal Commission on

Provincial Development and Rehabilitation, Volume 4 (Halifax, 1944).

792

Per George Davidson, 1944, in Balcom, supra note 793 at 28.

793

Ibid at 29.

256

The outcome of the Ideal Maternity Home Scandal illustrates how moral stigma,

backed by ostensibly objective psychiatric and psychological evidence, justified a lack of

state support for certain family forms despite this era of increased social responsibility.

Unwed mothers were encouraged by child welfare experts to give up their children for

adoption rather than justify their support as a matter of public responsibility, their request

for welfare was depicted as an indication of their “dependence”

794

and their desires to keep

their children were depicted by child development experts as neurotic and pathological.

The implication of psychiatric knowledge about the unwed mother and child

development was that while maternal deprivation resulted from the removal of children

from natural normal families, it was in the best interests of children to be removed from

unwed mothers. While financial problems limited the choice of unwed mothers to keep

their children, this conservative moral regulation deprived them of public support

provided to other families. It limited their ability to self-determine as a family and to

maintain custody of their children. This is not to argue that one field of knowledge

necessarily created the other, but rather to show how these three areas – social policy, child

welfare practice and child development knowledge – converged on the problem of the

unwed mother. In presuming these mothers unfit, however, while failing to provide them

with public services, their children were not only exposed to potentially coercive and

traumatic interventions on behalf of the state, but as the Ideal Maternity Home scandal

reveals, children born to these women were put in grave danger by a lack of supportive

services on behalf of child welfare and social assistance.

The policy of encouraging unwed mothers to give their children up for adoption,

however, was met with resistance by the unwed mothers themselves. Appearing in the late

1940s and into the 1950s is a series of cases dealing with unwed mothers subsequently

794

Fay, supra note 779 at 143.

257

revoking their consent to adoption. In the context of unwed mothers seeking to have their

children returned to them – having agreed to adoption in moments of crisis – the courts

had to articulate the circumstances under which their consent could be dispensed with. By

examining these cases we gain insight on whether and how the law assisted in or

challenged this regulation of the unwed mother. In the next section I will show how the

Supreme Court of Canada articulated a concept of “natural parental rights” based on an

interpretation of the common law and the Adoption Act. The articulation of “natural

parental rights” permitted the superior courts (and by the 1960s, the family courts) to

articulate a liberal legalist framework for the adjudication of child welfare decisions and

reclaim expertise over public custody decisions that had largely been relegated to the

specialized expertise of the Juvenile courts.

The Jurisprudence of “Natural Parental Rights”

The era of de-institutionalization did not result in the provision of supportive

services to unwed mothers and their children such as income and housing maintenance

services. CAS policy in the mid-1940s became focused on providing adoption “services” to

unmarried mothers. This meant that when an unmarried woman chose to keep her child

the answer was for CAS to intervene and to encourage these mothers to place the children

with them, into foster families – and still for many children, in institutions – awaiting

adoption.

795

A mother who voluntarily gave up her child for adoption (or who was

convinced by the CAS to do so) could still regain custody of the child by bringing a habeas

corpus application to the Supreme Court. The Adoption Act regulated when her consent

to adoption could subsequently be dispensed with should she choose to revoke it. Since

795

Jacobson, A Better Deal for Children, supra note 495 at 34.

258

1896, Nova Scotia’s Adoption Act

796

had provided that where a child was illegitimate no

order for adoption could be made without the mother’s consent unless she was found to

be the type of persons whose consent should be dispensed with.

797

In other words, the legal

capacity of the mother to consent to the adoption was predicated on her being found to be

a fit and proper mother, predicated not only on her ability to financially support the child,

but to raise the child in a moral and upright manner.

798

As discussed in Chapter 2, despite

this overt moralizing, these provisions of Adoption Act in effect served to protect a legal

sphere of privacy for unwed-mother-headed families by asserting that outside parties

could not simply take the illegitimate child from the unwed mother against her wishes.

However, as in often the case for marginalized families before the law, “the law on

the books” did not match the “law in action”. As the cases of Martin v. Duffell,

799

Hepton

v. Maat,

800

and Agar v. McNeilly,

801

reveal, this revocation of consent was often met with

resistance both by the CAS and by the courts. Mothers who gave their consent to adoption

after receiving the “infant placement” services provided by the CAS found that if they

796

RSNS 1900, c 122.

797

Adoption of Children Act, s 2(1)(d).

798

Ibid, s 3(1). That the mother is incurably insane; is imprisoned in a penitentiary and has yet to

serve three years at the time of the application; has for two years willfully deserted or neglected to

provide proper care and maintenance for the child; has allowed the child to be supported by a

charitable organization or as a pauper by the city; has been convicted of being a common drunkard,

and neglects to provide proper care and maintenance for the child; or has been convicted of being

a common night walker, or a lewd, wanton and lascivious person, and neglects to provide proper

care and maintenance for such child. In 1921, the Adoption Act was amended to include a seventh

ground upon which a person’s consent could be dispensed with: if the child was found to be a

neglected or delinquent child and was ordered delivered to the Superintendent of Neglected and

Delinquent Children or to the CAS, pursuant to the Children’s Protection Act, 1921.

799

[1950] SCR 737, 4 DLR 1.

800

[1957] SCR 606.

801

[1958] SCR 52.

259

wanted to revoke their consent they either were not told of the child’s whereabouts by the

agency

802

involved or the courts found in favour of the adoptive parents.

From this trilogy of cases we see that a procedure began to develop in the courts

such that when a mother had given her consent to adoption and the case was brought

before the superior court, the court would take jurisdiction over the matter and turn it into

a private custody determination, despite the fact that the mother was revoking her consent.

In treating the case like any other private custody determination between a mother and a

father, the court would weigh the relative positions of each party and make a determination

as to the best interests of the child. The procedure was set out in the case of Re Fex:

Where a parent has signed a solemn consent to adoption under the provisions of

The Adoption Act and the foster parents have taken the child and assumed their

parental duties with a view to fulfilling the probationary requirements of the Act, I

do not think that a child is to be restored to the natural parent on the mere assertion

of that parent’s right. I think the parent must go further and show that “having

regard to the welfare of the child” it should not be permitted to remain with the

foster parents.

803

Based on its parens patriae jurisdiction, the court took it upon itself to engage in a

determination of which family best served the welfare of the child. Rather than actually

802

Per Rand J in Re Agar, [1958] SCR 52:

Here, as in the case of Hepton et al v. Maat et al, there is the disturbing circumstance of a

concealment of the child’s whereabouts notwithstanding that, within a month and a half of

its being handed over to the foster parents, the welfare agency, and within six months, those

parents, knew the mother was seeking its return. It must, I think, be recognized that for the

period of at least one year the transferred custody is provisional; until an order of adoption

is made there is no obligation on the foster parents to keep the child nor on the part of the

parent or parents to acquiesce in the new relationship. The consent of the latter to adoption

may, by an order of the Court, be dispensed with, but until that is done there is always the

possibility of the child’s return. In that situation an aggravation of the conditions that would

surround that possibility is to be highly deprecated. If the provisional character of the

period is fully appreciated then the breaking of any ties between the child and the persons

seeking adoption will cause them much less distress. More important, however, is the

possible temporary effect upon the child. It would seem to me to be obvious good sense that

once the issue is raised it should be disposed of as quickly as possible. If the welfare of the

child is in reality the object of the social organizations and the parties desiring to adopt,

under the existing statutory provisions there will be no delay in facilitating that

determination.

803

[1948] OWN 497.

260

testing the need for intervention, the court took the fact of the child’s being before the court

as reason enough to take jurisdiction over the matter and decide the child’s placement.

Much like the juvenile courts – which, as statutory courts obtained jurisdiction over the

matter by finding the child to be a “delinquent”, for example – these superior courts

subsumed any consideration of the presumption of autonomy of the family to a best

interests determination.

Martin v. Duffell, the first case in the trilogy, dealt with the case of an unwed

mother from England – Lily Aves Duffell – who had had a child in Ontario after visiting

the province on holiday in 1947. The mother hid the pregnancy and birth of the child from

her parents in England. While receiving pre-natal care at a clinic in Toronto, a laboratory

technician, Mrs. Martin, befriended Ms. Duffell. After Duffell gave birth to her child, Mrs.

Martin visited her in hospital and discussed with Duffell the possibility of adopting her

child. On March 31, 1948, Duffell signed a consent to the adoption of her child. The child

was handed over to Mrs. Martin the next day. However, on June 18, 1948, Duffell changed

her mind and contacted her doctor and the CAS to try to get her baby back. Mrs. Martin

advised her that she would give the baby back if Duffell obtained a letter from her parents

stating they could provide a home for the baby. Duffell obtained a letter from her parents

on December 28, 1948, stating that they wanted to adopt the baby. The Martins, however,

were not willing to give up the baby.

An application was made to Surrogate Court to have the child returned to Duffell.

The application was dismissed on the basis of Re Fex.

804

Instead, the trial judge held that

the natural parent had the onus to show that it was in the child’s best interests not to

804

Ibid at 739. On the basis that when a parent signed a consent to adoption and the child was

placed with foster parents, the child should not be returned to the natural parent “on the mere

assertion of that parent’s right”.

261

remain with the foster parents.

805

On appeal, the Court of Appeal overturned the trial

judge’s decision and held that, before an adoption order was made, the court had the

discretion to return the child to the mother if it was in the child’s best interests.

806

The

Supreme Court upheld the decision of the Court of Appeal:

In the present state of the law as I understand it, giving full effect to the existing

legislation, the mother of an illegitimate child, who has not abandoned it, who is of

good character and is able and willing to support it in satisfactory surroundings, is

not to be deprived of her child merely because on a nice balancing of material and

social advantages the Court is of the opinion that others, who wish to do so, could

provide more advantageously for its upbringing and future. The wishes of the

mother must, I think, be given effect unless “very serious and important” reasons

require that, having regard to the child’s welfare, they must be disregarded.

807

The Supreme Court affirmed at law a presumption that the child belonged with the

biological family – a determination of best interests could not be engaged upon until it was

shown that intervention into this sphere of family autonomy was warranted. Only where

the mother could be shown not to be “of good character and is [not] able and willing to

support it in satisfactory surroundings” would intervention into the family be justified.

Despite its moralizing character, the statement was important for the time in affirming

that in determining whether or not to dispense of the consent of the natural parents, the

case could not be treated the same as a case involving a contest between parents. With the

Duffell decision, however, the Court was affirming that where the state was intervening to

determine whether to deprive the parents of the care and custody of the child, a threshold

805

Ibid.

806

Noteworthy, the Supreme Court also found in Mugford v Children’s Aid Society of Ottawa,

[1969] SCR 641 that a natural mother could also make an application to have her child returned to

her after the child was made a ward of the Children’s Aid Society with a view to adoption.

807

Martin v Duffell at 741.

262

test had to be overcome in order to secure the liberty of the family as a discrete legal entity,

against undue intrusion.

Shortly after the release of Martin v. Duffell, Nova Scotia’s Adoption Act was

amended.

808

Amongst others, the provision for dispensing with consent was amended and

a provision was added providing that an adoption order was final and could not be subject

to attack after one year from the date of order.

809

The consent provisions were updated to

provide that consent could be dispensed with where the court was satisfied that a person

was dead, or of unsound mind or could not be found in the Province or had willfully

deserted or neglected to provide proper care for a child for two years or allowed the child

to be supported by a charitable organization for two years.

810

The provisions from the 1923

Adoption Act dealing with a parent who is a drunk or “night walker” were repealed and a

general provision was included providing that a person’s consent could be dispensed with

where they are “a person whose consent in all the circumstances of the case ought to be

dispensed with.”

811

The implication of the amendments was that the Legislature wanted to

ensure that potential adoptive parents would not be dissuaded from adopting because of

the potential of an order coming under attack, and to include a more general description

of a person whose consent could be dispensed with. In the face of such a limitation on the

already meager privacy rights of the unwed mother provided for in the 1896 Adoption Act,

and the hostility that existed at the time against unwed mothers from CAS, child

development and social assistance quarters, the Supreme Court trilogy became even more

important in affirming the natural rights of parents.

808

Adoption Act, RSNS 1954, c 4.

809

Ibid, s 14.

810

Ibid, s 2.

811

Ibid, s 2(f)

263

The second case in the Supreme Court of Canada “parents’ rights” trilogy – Hepton

v. Maat – was handed down in 1957. The case involved a young married couple from

Holland – she was 21 and he was 23 – who gave their consent to adoption of newborn twin

boys. The father had been out of work and the couple feared they couldn’t provide

financially for the twins. However, within two months of giving their consent to adoption

they made their intention to revoke that consent known to the foster parents. At trial, the

judge awarded custody to the foster parents on a consideration of the children’s best

interests. The decision was overturned, however, by the Court of Appeal and upheld by the

Supreme Court.

The case can be understood as essentially a more strongly-worded reiteration of

the “rights” of natural parents to revoke their consent to adoption first articulated in

Martin v. Duffell. The language of Hepton v. Maat is important for its characterization of

the relationship between a child and their natural parents. Justice Rand began the decision

by stating the following:

It is, I think, of the utmost importance that questions involving the custody of

infants be approached with a clear view of the governing considerations. That view

cannot be less than this: prima facie the natural parents are entitled to custody

unless by reason of some act, condition or circumstance affecting them it is evident

that the welfare of the child requires that that fundamental natural relation be

severed. As parens patriae the Sovereign is the constitutional guardian of children,

but that power arises in a community in which the family is the social unit. No one

would, for a moment, suggest that the power ever extended to disruption of that

unity by seizing any of its children at the whim or for any public or private purpose

of the Sovereign or for any other purpose than that of the welfare of one unable,

because of infancy, to care for himself.

…

The view of the child’s welfare conceives it to lie first, within the warmth and

security of the home provided by the parents; when through a failure, with or

without parental fault, to furnish that protection, that welfare is threatened, the

264

community, represented by the Sovereign, is, on the broadest social and national

grounds, justified in displacing the parents and assuming their duties.

812

The Court held that the rule of law for centuries had acknowledged the natural law “which

points out that the father knows far better as a rule what is good for his children than a

Court of Justice can.”

813

Furthermore, the Court affirmed that this principle was in

accordance with the principle that the paramount consideration in all questions of custody

is the welfare of the child.

Finally, the third case in the trilogy – Agar v. McNeilly – involved the

determination of a habeus corpus application brought by an unwed mother, Helen Agar,

to regain custody of her child after giving her consent to adoption. At first instance, the

mother was denied custody of the child. However, on appeal, Roach J.A. of the Ontario

Court of Appeal overturned the trial decision and returned the child to the mother. The

decision is important, first, for its contextualized understanding of what constituted a

“voluntary” consent to adoption for an unmarried mother in the 1950s. Justice Roach asks

at para 44:

Although she was under no pressure by [superintendent of the maternity home],

she was under the pressure of the existing circumstances. What was she to do with

her baby? She could not take it with her. Having indicated before its birth that she

intended it should be adopted, why not sign the consent now that the time had

come for doing so, and she did.

The case is also important for the evidence reproduced in the Court of Appeal decision to

justify Justice Roach’s overturning of the initial rejection of the mother’s habeus corpus

application. Before deciding the case, Roach J.A. set out that the proper approach after

Duffell and Maat was to first “turn now to a consideration of Miss Agar's character,” then

812

Hepton v Maat at 606.

813

Ibid at 609. Quoting from Agar-Ellis v Lascelles (1883), 24 ChD 317 at 337-8.

265

to “her ability to support her child in satisfactory surroundings,” and then finally to decide

whether her wishes should be disregarded in the child’s best interests.

814

On a review of the evidence, Roach J.A. did not find the mother’s marital status or

fact that she gave up the child in the first place determinative. Instead, he was more

persuaded by affidavit evidence from family and employers that she was industrious, hard-

working, loyal and honest. In particular, Roach J.A. ordered the return of baby Agar on the

following basis:

Applying the rule of law laid down in the Re Baby Duffell case there are no serious

and important reasons that, having regard to the child's welfare, require the

mother's wishes to be overcome. All the evidence indicates that she is a highly

intelligent, ambitious, industrious, resourceful, steadfast woman and of good

character. Her home is decent and respectable and she is not to be deprived of her

child merely because her financial position is such that she has to go to work to

support herself and her child and while at work leave it in the care of another

person. It is common knowledge that today under the stress of financial

circumstances there are many young matrons, the mothers of one or two small

children, who daily go to work and leave the children in the care of other persons.

The woman in whose care the appellant presently proposes to leave her child in

those working hours is, on the evidence, a kind motherly person with the

experience gained from raising her own family. The learned trial Judge thought

that arrangement might not be permanent. If circumstances arise to terminate it, I

think the appellant, being the type of woman she is, can be trusted to make other

arrangements that will be equally respectable and otherwise adequate. She has a

host of first cousins and an uncle and an aunt living nearby. If the appellant and

her child were living together in this jurisdiction under comparable conditions,

there would not be the slightest justification for taking her child away from her,

and for myself I see no reason for this Court to deprive her of it. I would, therefore,

allow the appeal and direct that the respondents deliver the child into the custody

and possession of the appellant at the City of Toronto. This is not a case for costs;

each party should bear their own.

815

Even though an unwed mother had given her consent to adoption, evidence

showing her good character could be persuasive in having her child returned to her. Of

importance, however, in the face of such hostility towards unwed mothers by the CAS, was

the assertion that state intervention had to be tested before a best interests determination

814

Para 24.

815

[1957] OR 359, 8 DLR (2d) 353, at para 47.

266

could be carried out. Justice Roach’s decision was upheld by the Supreme Court of Canada

on appeal. The Supreme Court affirmed that the proper approach when deciding whether

to intervene and dispense with the natural parents’ consent to adoption was to first

determine whether there were very serious and important reasons to refuse to give effect

to the wishes of the natural parent. The Court again affirmed that this was in accordance

with the principle that the welfare of the child was the paramount consideration: the

welfare of the child, then, was presumptively provided for within the natural family until

it could be shown otherwise.

816

The trilogy not only reinforced the natural rights of parents – even unwed mothers

– to their children, but also challenged determinations of a child’s best interests based on

social class alone. Importantly, in Hepton v. Maat and then Agar v. McNeilly, as in Martin

v. Duffell, the court articulated that a consideration of economic and social advantages

should not persuade a court that the child was better off with a more well-to-do adoptive

family. As Cartwright J. held in Martin v Duffell, reproduced above: “[a mother] is not to

be deprived of her child merely because on a nice balancing of material and social

advantages the Court is of the opinion that others, who wish to do so, could provide more

advantageously for its upbringing and future.”

817

That is not to say, however, that in some

instances judges, like Locke J. in Agar v McNeilly, were not quite blatant in what they felt

the best interests of the child entailed:

I have examined with care the evidence given in this case and, while of the opinion

that the child would be more likely to have a successful and happy life if left in the

custody of the appellants, I have come, with regret, to the conclusion that, applying

the rule as stated in the decisions of this Court in the cases of Duffell and Hepton,

it has not been shown that the mother should be refused custody.

818

816

Ibid.

817

Martin v Duffell at 741.

818

Agar v McNeilly at 54.

267

The impact of the trilogy was that natural parents, even those of families in poverty,

ensured a presumptive right of families to their children and a right to revoke their consent

to adoption. This right outweighed any judicial determination that a child’s best interests

would be better provided for in a more affluent family. The cases, then, were progressive

in the sense that they contextualized the decision of unwed mothers to give up their

children for adoption and recognized that the social and economic pressures that women

were under at the time. In contextualizing their decisions, the court was challenging the

CAS’s depiction of these mother’s consent as being the result of choice or free will. Further,

in declaring, counter to child development, social assistance and CAS policy that unwed

mothers were even capable of providing sufficient care for their children such as to require

a testing – as opposed to just presuming the beneficence of – state intervention, the Court

was in effect declaring on the legitimacy of unwed mother headed families and their right

to a sphere of autonomy.

However, what is also evident from both Martin v. Duffell and Hepton v. Maat,

and subsequent jurisprudence applying these cases, is that the concept of “natural parental

rights” for unwed mother-headed and other marginalized families was not unconditional.

Where poverty was caused by moralized notions of dependency and “pauperism”, no

natural right could be said to exist. Only certain types of parents that fit the “normal” view

of family would have these natural rights protected. Accordingly, the role that social class

would play in adoption and in protection cases generally was more complicated than the

jurisprudence would have us believe. In the case of Martin v. Duffell, although Duffel was

an unwed mother, she had the support of middle-class parents. The Court recounted in its

decision that the unwed mother’s own father was a retired police sergeant in receipt of a

pension and employed as a civil servant. The Court also recounted how the family lived in

268

a London suburb in a comfortable home “which they own clear of encumbrance”.

819

Clearly, the case of Martin v. Duffell was a case of two middle-class families arguing over

custody of a child. We begin to see the contours of the family that will presumptively be

accorded natural parental rights. While the mother alone may be determined to be

deficient, a more holistic focus on the extended family as a whole was sufficient to ground

a claim for natural parental rights. Where an unwed mother could nonetheless be shown

to be from and have the support of a respectable family she may find her parental rights

protected.

In the case of Hepton v. Maat, the Maats were young, white, Dutch immigrants and

it is clear from the decision that the court found them to be morally upstanding people and

although poor, they were a religiously, racially and sexually appropriate family. In the

concurring Supreme Court reasons of Cartwright J., he quoted the following passage from

Aylesworth J.A. with approval:

The evidence shows that the young parents, although of extremely modest means,

are hard-working, religious people of respectable parentage. They are regular

attendants at their church and have many friends in their community of the same

racial strain as themselves.

…

I am quite unable to find anything in the evidence so far as the welfare of their

children is concerned in impeachment of the appellants from a moral, spiritual or

social viewpoint; reference has already been made to the economic situation, or

even to the contrast in the economic situation, as between the appellants and the

respondents, but the appellants are much younger than the respondents and have

yet to make their way in their new country. As I have already said the evidence

indicates that they are industrious and of good character…

820

The industriousness of the Maats indicated that their poverty may be temporary and in

fact they were not destined to be paupers. In the mental hygiene discourse of the day, these

819

Ibid at 739.

820

Hepton v Maat at 610.

269

parents were not delinquent or dependent. In the final case of in the Supreme Court trilogy,

Agar v. McNeilly

821

, handed down the year after Hepton v. Maat, the mother, Helen Agar,

was similarly held to be of “good character” when evidence from employers and family

showed her to be industrious and hard-working, though poor.

Therefore, while the jurisprudence of natural parental rights from the Supreme

Court of Canada was progressive in that it secured the rights of even unwed mothers – so

maligned in both psychiatric and social assistance discourse of the day – those unwed

mothers were still required to fit the mold of the white, industrious, middle-class mother.

In the next section I will show that while unwed mothers were increasingly depicted as

deserving of support in the civil rights era of welfare discourse, unwed mothers who did

not fit into a normalized, white notion of the unwed mother were increasingly excluded

from this “natural” regime of parental rights.

The Contingency of Natural Parental Rights

The jurisprudence of natural parental rights continued to evolve and strengthen

from both the Supreme Court and from provincial appellate courts in the post-war era. In

1969, the Supreme Court dismissed an appeal from the Court of Appeal for Ontario in

Mugford v. Children’s Aid Society of Ottawa,

822

allowing the return of the child to the

natural mother after the child had been made a ward of the society in contemplation of

adoption. The language in the Court of Appeal decision is indicative of the view of parents’

rights that was developing and the complicated relationship that this view had to questions

of morality and social class:

821

[1958] SCR 5

822

[1969] SCR 641.

270

One cannot over-estimate the importance to a child of living, moving and having

its being in an environment shared by its own blood kin where it will enjoy the

warmth and affection of the mother who gave it birth. These are but a part of the

intangible values which flow from a custom deeply rooted in our way of life against

which superior material advantages which a child may enjoy in the home of

strangers in blood cannot accurately be measured on the most delicately balanced

scales. The law is on the side of the natural parents unless for grave reasons,

endangering the welfare of the child, the Court sees fit not to give effect to the

parents’ wishes.

823

By the late 1960s, separating material advantage and the parents’ rights to custody

was consistent with public discourse on social assistance at the time. The late-1960s in

Canada saw the emergence of a consciousness about poverty that was influenced at least

in part by the agitations of the civil rights movements. In 1965, Lester Pearson had

declared a war on poverty and increased levels of assistance to mothers and children in

need.

824

1966 saw the introduction of the Canada Assistance Plan (CAP), meant to expand

welfare eligibility and target poverty regardless of “causes” of poverty (i.e., with eligibility

not based on the status of being a widow, or deserted or unmarried, etc.).

825

In 1968, a

Special Senate Committee on Poverty recognized that poverty was intimately linked with

racial and sexual discrimination.

826

Furthermore, a civil rights critique within welfare exposed the social as well as the

economic causes of poverty. Women, this time both middle class professionals, and women

on assistance, mobilized around the discourse of welfare rights.

827

They promoted

awareness about both the gendered and raced determinants of poverty, particularly as it

823

Per Schroeder JA in Re Mugford, [1970] 1 OR 601, 9 DLR (3d) 113 at 121.

824

Little, No Car, No Radio, supra note 68 at 139.

825

Guest, The Emergence of Social Security, supra note 207 at 192.

826

Ibid at 168.

827

Fay, supra note 779 at 151.

271

related to families headed by single mothers. As a result, acceptance of the gendered and

raced dynamics of poverty was laid out in 1970 in the Report of the Royal Commission on

the Status of Women in Canada in particular with regard to sole-support mothers, elderly

women and aboriginal women.

828

A federal white paper entitled Income Security for

Canadians that came out the same year as the Royal Commission report, criticized

Canada’s social security system for failing to alleviate poverty in Canada.

829

Therefore,

women’s welfare and civil rights activism the late-60s and early 70s promoted a

recognition that not everyone had benefitted equally from the welfare state of the post-war

years. In their politicization of poverty they encouraged a recognition of the gendered and

racialized aspects of poverty began to make its way into the analysis.

830

This new awareness of the political dynamics of poverty and the agitation for rights

for the poor was taking place in Nova Scotia as well, as rights groups organized for civil

rights and recognition of the problems of racism and poor bashing.

831

With this discourse

of civil rights came an analysis of racial and economic oppression which became

articulated as “welfare rights”. Welfare rights demanded that persons in poverty be entitled

to the same recognition that all other beneficiaries of Canada’s social security system had

received in the post-war era. The movement demanded an end to the stigmatization of

persons on assistance and a recognition of the inequalities inherent in the capitalist

system.

828

Canada, Report of the Royal Commission on the Status of Women in Canada (Ottawa:

Information Canada, 1970) at 309-331, online: Status of Women Canada <http://epe.lac-

bac.gc.ca/100/200/301/pco-bcp/commissions-ef/bird1970-eng/bird1970-eng.htm>.

829

Canada, National Health and Welfare, Income Security for Canadians (Ottawa: Queen’s Printer,

1970).

830

See Premilla Nadasen, “’Mothers at Work’: The Welfare Rights Movement and Welfare Reform

in the 1960s,” in Gavigan and Chunn eds, The Legal Tender of Gender, supra note 41 at 103.

831

Fay, supra note 779 at 151.

272

While Canada was experiencing a relative renaissance in terms of the provision of

social security in the post-war years, the administration of assistance to mothers in Nova

Scotia was still circumscribed by a concern for ensuring their moral worthiness. With the

expansion of benefits in 1966, Nova Scotia provided benefits not just to “deserving”

widows, but to deserted and unwed mothers. CAP assisted in the opening up of eligibility

to all mother-headed families with the federal government sharing financial

responsibilities for these families.

832

However, as Jeanne Fay has argued, rather than

accepting the federal expansion of eligibility, those in charge of actually administering

welfare continued to be concerned with sorting out “problem mothers”.

833

Just after the

introduction of the Social Assistance Act, literature coming out of the Department of

Public Welfare tended to valorize the selfless foster mother while describing women on

assistance as “victims of intergenerational poverty”.

834

Of particular note were the

descriptions of African Nova Scotian women as “disadvantaged” and “deprived” and

therefore the conflation not only of dependency and gender, but race, as well.

835

Therefore, along with the welfare rights movement came a discourse of

maternalism to challenge welfare’s casting of unwed mothers as undeserving. This era,

however, exemplifies the flexibility of the maternalist discourse. On the one hand the

welfare rights groups were able to mobilize the maternalist discourse as women

demanding their rights to a pension based upon their reproductive labour. Yet women’s

groups also used the maternalist discourse to reinforce the old moralizing discourse of

maternalism from welfare’s past. For example, Fay writes of the Halifax Women’s Bureau

832

Ibid at 147.

833

Ibid at 148.

834

Ibid at 149.

835

Ibid.

273

who organized to study the Report of the Royal Commission on the Status of Women.

While the group was able to use Marxist language to critique the Department of Labour

and unions for failing to adequately protect female workers, its analysis of the concerns of

women on welfare reinforced the old stereotypes of the past.

In the case of unmarried mothers, however, the Women’s Bureau drew upon the

child welfare perspective to define them as ‘girls’ who needed proper sex education

to prevent pregnancy, clearly implying that unmarried motherhood was

inappropriate.

836

Similarly, while the parents’ rights trilogy of the Supreme Court contained

elements of this concern for supporting the autonomy for low-income and unwed mother-

headed families, it was also responsible for naturalizing a connection between parental

rights and moral worthiness. While courts could not immediately turn to a consideration

of best interests of the child – weighing the inevitable material advantage of the potential

adopting parents against the better material position of the unwed mother – the Courts

continued to be justified in first conducting an inquiry into the mother’s fitness and “good

character”. A lack of evidence of “good character” would abrogate one’s ability to assert

their natural parental right to custody of the child.

This double-edged sword of natural parental rights was also evident in the child

welfare jurisprudence in Nova Scotia at the time. Applying the Supreme Court trilogy to

child welfare cases in Nova Scotia provided lone mothers with a sphere of autonomy not

previously protected, but this autonomy was circumscribed by a focus on parental fitness.

This focus is also consistent with the definition of “neglected child” and later, “child in

need of protection” under the Act. However, it is telling that of the 12 enumerated grounds

listed under the 1950 Act that would find a child to be neglected, one ground in particular

836

Ibid at 156.

274

was consistently relied upon in the jurisprudence – the ground of parental “fitness”.

837

I have shown in the preceding chapters, philanthropic, religious, and moralizing

discourses have been drawn upon in the history of child protection to establish “fitness” in

various eras. Increasingly, however, courts in Nova Scotia adjudicating upon fitness and

indeed, best interests of children, came to rely more upon a psychiatric or psychological

rather than a strictly moralistic discourse in deciding child welfare cases. Rights to family

autonomy were equated with normalcy and the ability to produce the normal, well-

adjusted child, as opposed to the meeting overtly moralized criteria of worthiness.

Furthermore, it appears that while the Department was willing to support legislative

endeavours to bring decision-making more in line with a liberal legalist framework, its

answer to the direction by the Supreme Court that more than mere poverty was needed to

837

The 1950 Act introduced a number of new definitions of neglect which were even more moralistic

and even more vague than those contained in previous Acts. Of particular interest to the drafters of

the Act was to craft definitions of neglect which were broad enough to capture any instance where

a child was living in unfit or improper circumstances. The 1950 Act introduced a number of broad

standards for determining a child to be a neglected child:

2(h)(iv) a child who is growing up under circumstances tending to make him idle,

dissolute, delinquent or incorrigible; or

…

(x) a child who is being cared for by a person other than his parents at such person's

expense in circumstances which indicate that his parents are not personally

performing their parental duties toward him; or

(xi) a child who is in the charge of a person who by reason of illness, misfortune,

infirmity or other cause is unable or unfit properly to care for and maintain him;

(xii) a child whose parents or parent have or has neglected or refused to provide or

secure or permit to be provided or secured medical, surgical, or remedial care

necessary for his health or well-being.

The first three grounds added to the 1950 Act were no doubt targeted towards parents that did not

have the financial means to look after their children and had either given their children away or

kept their children and who, by reason of idleness, infirmity, or misfortune, did not have the means

to maintain a “fit” and “proper” home. While the services and assistance provided for by the Act

may help to ameliorate a family's deteriorating material circumstance, the characterization of their

situation as “misfortune” or “idleness” or unwillingness to provide “parental duties” would have had

the effect of further stigmatizing those families living in poverty.

275

find a child neglected, was simply to expand the grounds upon which such a finding could

be made.

The Legacy of the “Parents’ Rights Trilogy” in Nova Scotia and the Medico-Legal

Regulation of the Unwed Mother

Before the 1970s, there was very little jurisprudence issuing from the Supreme

Court in Nova Scotia on child welfare matters, even though the Child Welfare Act had since

its introduction in 1954 contained a provision allowing for appeal to the Supreme Court.

838

After the Supreme Court trilogy and an early application of the trilogy in the 1962 Nova

Scotia case of Re Perry

839

, a small number of child protection decisions were appealed to

the Supreme Court.

840

Furthermore, in 1968 the 1950 Child Welfare Act was amended to

remove the category of “neglected” child and to introduce the concept of “child in need of

protection”

841

. The definition of “child in need of protection sought to do away with the

“fault-oriented” neglected child standard.

842

The “neglected child” standard from the 1950

Child Welfare Act, still contained aspects of the child cruelty and delinquent standards of

neglect from the child protection’s early years. For example, a “neglected child” was

defined as a child who:

 Is found begging or receiving alms, or stealing in any place whatsoever;

838

Child Welfare Act, 1954, s 35(1); Child Welfare Act, 1967, s 40(1).

839

[1962] 33 DLR (2d) 216, NSJ No 10.

840

Re MJM (1970), 3 NSR (2d) 293, 3 RFL 25; Re Lou (1971), 23 DLR (3d) 454; GM v Family and

Children’s Services of Hants County (1971), 5 NSR (2d) 589 [while this is not an appeal but rather

an originating application to terminate guardianship, it involves many of the same considerations

as the other cases listed here]; Re PJS (1974), 15 NSR (2d) 93, 19 RFL 315 [hereinafter, Re Sarty];

Re Milner (1975), 58 DLR (3d) 593, 13 NSR (2d) 378 [this was an appeal by the CAS, not the parent].

841

Infra, note 844.

842

DA Rollie Thompson, The Annotated Children and Family Services Act (Halifax: Department

of Community Services, 1991) at at 39.

276

 Is found associating or dwelling with a thief, habitual drunkard, vagrant,

prostitute, dissolute, vicious or disreputable person of ill fame;

 Is delinquent or incorrigible;

 Habitually uses obscene, profane or indecent language or is guilty of

immoral conduct.

843

With the 1968 amendments, the harms which justified state intervention into the

family evidenced a more concerted focus on the family as a psychological entity, and on an

evaluation of parental conduct on more objective and less moralizing terms. The focus on

the child as innocent or potential criminal from the child saving and delinquency eras was

removed, as was the language of temperance and “dissolute” lifestyles from the

philanthropic era. Instead, the definition of “child in need of protection” became focused

not on the actions of the child or on the child’s status as a pauper, vagrant or delinquent,

but on parental conduct:

(i) A child who is without proper supervision or control;

(ii) A child who is living in circumstances that are unfit or improper for the

child;

(iii) A child in the care or custody of a person who is unfit, unable or unwilling

to exercise proper care over the child;

(iv) A child whose life, health or emotional welfare is endangered;

(v) A child who is in the care and custody of a person who fails to provide for

his education;

(vi) A child who is committed pursuant to paragraph (h) or (i) of subsection (1)

of Section 20 of the Juvenile Delinquents Act (Canada), or

(vii) A child who is in the care or custody of a person who refuses or fails

a. To provide or obtain proper medical or other recognized remedial care

or treatment necessary for the health or well-being of the child, or

b. To permit such care and treatment to be supplied to the child when it is

considered essential by a duly qualified medical practitioner.

844

Not only would the CAS have to show that a child was in need of protection, but

they would have to show “that it is the actions of the parent or guardian which have caused

843

1950 Act, ss 2(h)(i) to (v).

844

Children’s Services Act, SNS 1976, c 8, s 2(1)(l). The 1968 amendments were carried over to the

1976 Act.

277

the child to be a child in need of protection.”

845

The Supreme Court jurisprudence on

parents’ rights had affirmed that absent compelling and important reasons the child’s

place was in the home. Therefore, the concept of “child in need of protection” sought to

establish that it was not just that the best interests of the child necessitated her removal

from the home, but that the parent’s conduct was such that they were unable to care for

the child.

Not only were the harms justifying state intervention into the private sphere of the

family amended so as to remove some of the moralistic characterizations of parental

conduct, but several cases decided in the early-70s indicate that the “parents’ rights”

jurisprudence at the Supreme Court was indeed a powerful tool for parents to regain

custody of their children. At a time when there was little recognition in the jurisprudence

of the importance of safeguarding family autonomy against the state, the articulation of a

jurisprudence of “natural parental rights” allowed for some recognition that this was not

simply a determination of custody between two private parties. Articulating a “parents’

rights” jurisprudence allowed some consideration of the gravity of state intervention in

making children wards of the CAS, and the need for the Agency to show important and

serious reasons for this decision.

In the case of Re M.J.M.,

846

Hart J. of the Supreme Court, Trial Division, heard an

appeal from a decision of Judge Hudson of the Family Court refusing to terminate an order

for guardianship of the two children of the appellant. The case was clearly one which found

the children in need of protection because of the mother’s poverty and misfortune, and not

because of any other “objective” harm to the children. The mother and father in this case

had married some 8 months before the birth of their first child and divorced two years

845

Nova Scotia, House of Assembly, Official Report of Debates (Hansard), (8 April 1976) at 1472

(Melinda Maclean).

846

(1970), 3 NSR (2d) 293, 3 RFL 25.

278

after the birth of their second child. The mother was effectively a single mother as the

father moved away to Toronto and appears not to have been involved with the family after

this time. The mother had voluntarily placed the children in a foster home and was

attempting to pay for their support by working at the Grace Maternity Hospital. However,

she was unable to make her required payments and the children were found to be in need

of protection by virtue of s. 1(h)(x) of the Child Welfare Act:

A child who is being cared for by a person other than his parents at such person’s

expense in circumstances which indicates that his parents are not personally

performing their parental duties toward him.

The children were made wards of the Department. The foster parents wished to

adopt the children. In an attempt to regain custody of her children before they were

adopted, the mother applied to terminate the order for wardship. The appellant, who had

been living in Montreal in search of gainful employment, worked closely with Catholic

Family and Children’s Services there in hopes of gaining the return of her children in

Halifax. She submitted herself to psychiatric examination in Montreal and appeared at the

hearing in Halifax with favourable reports from both the Welfare Agency in Montreal and

a psychiatrist there. In refusing to terminate the wardship order, Hudson Fam.Ct.J. found

that the reports submitted by the appellant were inadmissible as hearsay, and on the rest

of the evidence he could not make a finding that the order should be terminated. He held

that,

Had the evidence contained in the two letters been admissible, much more

consideration would have been given to the mother’s application for termination

of guardianship…I was convinced that she loves [her children] dearly and that she

tried very hard to convince the Court that she is a suitable person to give her

children a home and could provide for them adequately.

847

Ibid at para 14.

279

The mother, then, by reason of her poverty and an unusually strict evidentiary

ruling, faced losing her children permanently. In overturning the lower Court’s decision,

Hart J. indicated that this was the very situation against which the parents’ rights trilogy

was meant to protect.

848

In quoting from Hepton v. Maat, Hart J. ruled that “prima facie

the natural parents are entitled to custody unless by reason of some act, condition or

circumstance affecting them it is evident that the welfare of the child requires that that

fundamental natural relation be severed.” In the case at hand, Hart J. held that while the

potential adoptive parents were providing an “excellent family environment”

849

for the

children, there was no act, condition or circumstance which necessitated removing the

children from the mother’s care permanently. Justice Hart recognized that the mother had

established a suitable environment for the children, despite her difficulties in providing

for her children financially, with little help from family or the father. The Supreme Court

held that there was no jeopardy to the welfare of the children in returning them to their

mother.

The concept of natural parental rights continued to be an important tool to

safeguard the family autonomy of traditionally marginalized families in Nova Scotia. In Re

Lou

850

Gillis J. of the Supreme Court Trial Division reversed the lower court decision to

terminate the guardianship rights of the racialized father of “illegitimate children”. Justice

Gillis indicated that the decision to apprehend the children and make them wards of the

society was due to racist motivations. In coming to his decision to overturn the lower court

judge’s decision not to terminate Lou’s guardianship, Gillis J. criticized the actions of the

CAS and the CAS worker as follows:

848

Ibid at para 21.

849

Ibid at para 22.

850

(1971), 23 DLR (3d) 454, 7 NSR (2d) 335.

280

My criticism of her, and I think of the Society generally, is in the attitude that a

Chinese man, living in a white society, might direct the children, contrary to the

wishes of that society and therefore he is incapable of having them, caring for them,

or directing their development because he would instill in them something of a

different culture.

851

Judge Gillis found that there was no evidence to warrant a finding that the children

had been in need of protection. Instead, the decision of the CAS and then of the judge

below, appears to have been a determination based totally on the CAS’s perceived welfare

of the children, without first justifying their intervention. Justice Gillis held that, “The

assumption throughout has been that the children would be better off in the custody of the

Society than in the custody of their natural father. On this point, the evidence is a balancing

of niceties assumed to be the desires of the society for such children” in opposition to what

their father wanted for them.

852

While the concept of natural parental rights provided important protections for

some poor and/or racialized families, on the other hand, the concept was capable not only

of challenging, but of reinforcing a moral regulation of some families in poverty.

Determinations of fitness continued to be premised on racist, sexualized, gendered and

classed determinations that were present, for example, at the trial level of both Re MJM

and Re Lou. Three cases, in particular, that we have on the record were decided between

1971 and 1976 under the Child Welfare Act, 1967: GM v. Family and Children’s Services

of Hants County;

853

Re Sarty;

854

and Re Cullen.

855

All three reveal how natural parental

851

Ibid at para 42.

852

Ibid at para 44.

853

(1971), 5 NSR (2d) 589, 12 RFL 167

854

(1974), 25 NSR (2d) 93, 19 RFL 315 (TD).

855

(1976), 2 RFL (2d) 193, NSJ No 609.

281

rights could be equated with a white, heteronormative, middle-class notion of a normal

family.

The case of GM involved the application of aboriginal parents for termination of a

guardianship order. The parents argued that they had, since their child was taken into care

three years earlier, gained control over their alcoholism, which had been a concern of the

CAS in apprehending the children. Further, the parents were concerned that the child was

going to be adopted by a white family and therefore would lose his heritage.

856

The parents

brought four witnesses with them to court to testify that they now had their drinking under

control and they had remedied the concern of the CAS sufficient to remove the

circumstance that found the child in need of protection. While finding that there had been

some credible evidence of the parents’ rehabilitation, the Court refused to give much

weight to the witness evidence:

I note that all of the witnesses called on behalf of the applicants are of the Indian

race, and to this extent I consider that they have in interest in these proceedings. I

don’t disbelieve any particular witness but I point out that their evidence was

generally of generalities and negative evidence, such as “I don’t see him drinking”,

or “I didn’t see them drinking”, and, in general, it lacked the nature of evidence I

feel I should accept on the question of drinking.

857

Having determined that the evidence of the Indian witnesses of the applicants was

not the type of evidence a judge should accept on the question of drinking, he refused to

terminate the order for guardianship, opening the way for the adoption. The implication

of McLellan Co.Ct.J.’s decision was that aboriginal persons could not be trusted in their

evaluation of responsible drinking and therefore, he refused to accept any evidence of the

parents’ rehabilitation. Clearly, he felt a white home, with white middle-class parents was

a more trustworthy home and environment for the child.

856

GM at para 7.

857

Ibid at para 26.

282

In the case of Re Cullen, Andersen Co. Ct. J. dispensed with the consent of the

natural mother for the adoption of her illegitimate child after finding that a 16 year old

mother was not a fit mother for the child. The unwed mother gave her consent but had

later revoked her consent. In a clear misapplication of the trilogy as handed down by the

Supreme Court of Canada, Andersen Co.Ct.J. simply found that it would be better for the

child’s welfare to be with the adoptive parents. In an evaluation of custody similar to a

private custody case, the judge weighed the two potential homes:

The natural parent in this case is a 16-year-old student who has no immediate

prospects of marriage and no intentions of marriage at the moment. She is not

keeping company with the natural father of the child….Counsel for the applicant

indicated in his submission that there was no evidence of promiscuity of the part

of the applicant, and I take it from that he meant sexual promiscuousness; however,

it is difficult for me to see how this can be a fact when the applicant was having

extra marital sexual relations which resulted in the birth of the child.

858

The immature, sexually promiscuous mother was then contrasted with the proper

upbringing the child would have with “two mature, responsible parents who have now,

which was evident at the time of hearing, a great love and attachment to the baby they have

had since it left the hospital at the time of birth. It is important that a male child have a

father or male figure with whom he can relate.”

859

Andersen Co. Ct. J. simply weighed what

he saw to be in the child’s welfare – to be in the care of two responsible adults, as opposed

to one young, promiscuous young woman – and terminated the mother’s right to the child.

Finally, Re Sarty, or Re P.J.S., involved a child who was alleged to be in need of

protection as he was in the charge of a person who, “by reason of misfortune” was unable

to properly care for him. The mother had on several occasions placed the child with the

CAS in moments of stress. She had on these occasions returned and taken the child when

she felt herself capable of providing proper care. On one occasion, however, in a moment

858

Cullen at paras 22-24.

859

Re PJS, at para 25.

283

of crisis, she placed the child with the CAS for the purpose of placing the child for adoption.

In determining that the child should become a ward of the CAS the family court judge

particularly relied upon evidence of the mother’s emotional instability, even though expert

evidence had indicated that the child was not harmed and had been well cared for by the

mother. In particular, the family court judge made the following finding with regard to the

doctor’s evidence about the mother:

Her emotions he said, ‘are not even’, so really it makes some of the evidence stress

more clearly to me that Mrs. K’s ability can be questioned not only with regard to

men but in choosing her friends generally and also in her dealings with the child.

860

Furthermore, he noted that there was evidence that she had been “keeping

company with at least six men” in six years.

861

In other words, despite evidence provided

by the mother’s doctor to the contrary, the family court judge chose to infer from evidence

of the mother’s emotional instability and her sexual promiscuity that she was a danger to

the child. The mother did not fit the mold of the normal mother and as such, the judge

directly inferred from this that the best interests of the child mandated that the child

should be taken from her care. The family court decision in Sarty was overturned on

appeal to the Supreme Court. The Supreme Court held that the family court judge had not

made a proper finding that the child was in need of protection, but rather had decided the

case purely on the basis of the welfare of the child. The Supreme Court was persuaded by

the evidence of the doctor that, although the mother suffered from some emotional

instability, she had always been able to properly care for the child.

860

Ibid at para 17.

861

Ibid at para 10.

284

Introduction of the Children’s Services Act

In 1976, the Children’s Services Act

862

(the “CSA”) was introduced, which

combined and replaced the Child Welfare Act and the Adoption Act.

863

The CSA carried

over the definition of “child in need of protection” from the 1968 amendments.

Furthermore, in keeping with a greater emphasis on the liberty rights of the parents,

procedural protections were also being put into place in the new CSA. Time lines for

proceedings after apprehension were introduced, as were time lines to allow for

adjournments and the gathering of psychiatric evidence.

864

The Act provided that a hearing

had to be held within 21 days of taking a child into care. The Act also mandated that judges

provide written reasons for their decisions and that the reasons should be available to any

party to the proceedings.

865

Overall, the Act was described as being less “authoritarian”

and coercive and more focused on “counseling and persuasion.”

866

This might have been true in terms of providing for greater procedural protections

and more emphasis and attention on the due process rights of those involved in the

process. However, the definition of a “child in need of protection” still contained vague

standards of “fitness” and a lack of direction as to what constituted the best interests of the

child, allowing for value judgments of maternal inadequacy by judges deciding child

welfare cases. Furthermore, the grounds for finding a child in need of protection continued

to focus almost exclusively on the parent, and in many cases, the mother, with little regard

862

SNS 1976, c 8.

863

RSNS 1967, c 31; 2.

864

CSA, s 49.

865

CSA, s 62(2).

866

Nova Scotia, House of Assembly, Official Report of Debates (Hansard), (15 March 1976) at 1470

(Hon William MacEachern).

285

to the effect on the child. In particular, it is evident from the cases decided several years

after the introduction of the Act that greater use was being made of psychiatric evidence

to chronicle the elements of maternal deficit. The shift to using psychiatric evidence to

predict maternal fitness – on an objective “scientific” standard as opposed to a subjective,

value laden moralizing standard of fitness – is evident when we compare two early

Children’s Services Act cases: Maguire and Lake.

Maguire, or Children’s Aid Society of Colchester County v. B.M.

867

was an early

Children’s Services Act case that was appealed up to the Court of Appeal, where the

decision of the family court judge finding the child to be in need of protection was

overturned. The case involved a mother who was suffering anxiety and depression after

the death of a husband, and then an uncle. Mrs. B had been hospitalized twice for

psychiatric treatment for depression, anxiety and psychosis because of these two incidents.

CAS became involved and apprehended the child after her partner reported to the Society

that the mother – Mrs. B – kept knives under her pillow and was threatening to kill herself.

The family court judge found the child to be in need of protection on the basis that the

mother was unfit and would be unable to provide “the emotional stability required in the

long run for the full development of the child.”

868

The family court judge had found that

the child should not be returned to the parents as they were unfit due to the mother’s

mental health problems and the father’s drinking problem. The order was made despite

the fact that the “housekeeping standards in the living premises of the respondents were

adequate, the baby appeared to be clean and there was no reason to be concerned about

867

(1979) NSR (2d) 1, 9 CPC 220 (CA).

868

Ibid at para 16.

286

the general hygiene of the child or its nutrition.”

869

Nor was there any allegation that any

harm had come to the child.

In the course of overturning decision of the family court judge, McLellan Co.Ct.J.

criticized the judge for failing to give due weight to the evidence of a doctor who had

examined Mrs. B and for “placing undue emphasis on the future aspect of the emotional

instability which at one time affected the mother of the child”.

870

The evidence of the doctor

– Dr. Griffin – was that while the mother “disorganizes far more than most people” under

stress, her problems were being handed with medication. Further, when asked about her

parenting skills, Dr. Griffin gave the following evidence:

I should mention that she behaved in an extremely motherly fashion. She did all

the right things as far as I could tell. She soothed it when it was upset, took it up on

her lap when necessary and all the things which were appropriate for a mother to

do. Now that is the only time in my life I have ever observed her handling a child

but I mention it for what it is worth.

871

With regard to whether or not the doctor felt there was any reason why the mother

and her partner should not have custody of the child, Dr. Griffin responded:

Yes, I think she would be unable to look after the child, of course, that’s true of

anyone who is sick I suppose, they are unable to look after a child. When she was

having these sick spells for which she went to the Nova Scotia Hospital, she would

probably be unable to look after a child but at the present time I see no reason why

she couldn’t look after a child.

872

In overturning the decision of the family court judge, the appellate court held that there

was no evidence that the child was in need of protection for the reason that she is “not

properly cared for or suffering from any neglect at the present time.”

873

The County Court

869

Ibid at para 11.

870

Ibid at para 16.

871

Ibid at para 7.

872

Ibid.

873

Ibid at para 17.

287

judge found that looking to the future and the possibility that the mother may have another

breakdown and be unable to provide for the child was not a proper basis on which to find

a child in need of protection where the child’s current needs were being met. Reiterating

the reasoning of Niedermayer Fam.Ct.J. in the decision of Nova Scotia (Minister of Social

Services) v. JR,

874

he held: “I cannot consider the future possible events but rather I must

consider the present probable consequences with respect this child.”

875

On further appeal,

the Court of Appeal upheld the County Court decision.

876

Maguire, and indeed, the Supreme Court judgment from Sarty, outlined above,

affirmed that a mother’s psychiatric challenges could not be the basis to find a child in

need of protection where those challenges were currently being managed and there was no

proof of harm to the child. The Court of Appeal took a sharp turn two years later in

Children’s Aid Society of Halifax v. Lake.

877

In this case, the Court of Appeal held that the

focus of the Children’s Services Act had changed from that under the Child Welfare Act.

Now, the Court could consider the causes and effect of the dysfunctional family with

psychiatric and psychological evidence and make a determination of the future fitness of

the parent. Even, as in the case of Lake, where a parent was never able to take the child

home from the hospital, psychiatric evidence as to parental fitness could serve to find a

child to be in need of protection.

Lake involved an unwed, twenty-year-old mother whose baby was apprehended by

CAS at the hospital following the child’s birth. The baby was found to be in need of

protection on the basis that the mother was unfit and therefore the baby’s “life, health or

874

(1980) 44 NSR (2d) 493, NSJ No. 63.

875

Ibid at para 20.

876

Ibid at para 19.

877

(1981), 45 NSR (2d) 361, 86 APR 361.

288

emotional welfare is endangered”.

878

The mother had been institutionalized several times

and her diagnosis of behavioural disorder, and mixed neurotic and depressive traits did

not improve with medication, according to her doctor. Lake was found by the court to

“show a limited level of intellectual functioning combined with behavioural outbursts of

verbal and at times physical aggression.”

879

Medical staff who attended to Lake while she

was hospitalized for psychiatric help gave evidence that “this girl is totally unable and

incompetent to assume the role of a responsible mother”.

880

In particular, her attending

psychiatrist – Dr. Hingley, a psychiatry student in the early months of his residency at the

IWK at the time – gave evidence at trial of her psychiatric disorders and their impact on

her ability to mother. In particular, Hingley diagnosed Lake with “explosive behavior

disorder combined with an aggressive personality disorder in the setting of mild

retardation.”

881

He gave the following evidence which was relied upon by the family court

judge and later the Court of Appeal:

A. The capacity to parent without the possibility of child abuse, which is basically

my concern, is a very difficult concept to deal with. The first thing that really

has caused me considerable difficulty is the fact that there is very little

published or very little that people or psychiatrists in general have known or

pediatricians for that matter as to how to protect - which individuals will abuse

their children. There's been lots published about what happens after a mother

has had a child and what's the likelihood of the child being abused again, and

this is where most of my difficulties came in trying to, for myself, come to a

conclusion. I went and reviewed what I could find in the literature. Again I'm

talking purely in terms of the predictive - reviewing the literature in terms of

what facets can we find that would be predictive of child abuse in an individual

before they've had their child. In other words, it's trying to find characteristics

of the mother that you can document before she has the child. She has the

tendency to abuse the child; and to do that was extremely difficult. It was the

best part of an afternoon to try to find what people had said about this but the

more recent literature that is coming out certainly tends to suggest a very clear

878

Ibid at para 1.

879

Ibid at para 3.

880

Ibid.

881

Ibid at para 6.

289

characteristic picture of those individuals who they find will subsequently go

on and abuse their children."

"Q. Now, Dr. Hingley, again perhaps you'd review the last paragraph of your letter

of October 30th for the court?

A. That paragraph refers to the presentation of the case at departmental rounds

and in which all of the medical staff attached to the unit or most of them were

present, including two staff psychiatrists. The history to date was presented

and it was the opinion of all those there at that time that this girl would be

incompetent to assume the role of a responsible mother, and these statements

were subjected to the clinic head; and he approved them as well as expressing

his opinion and that of the clinic. Now, in addition, my own opinion is based

on what is known about this. How do I make up my mind?" [emphasis added]

In Dr. Hingley's opinion there was a high likelihood for child abuse although there was no

evidence that Lake had previously abused children. Dr. Hingley also stated that she was

not psychotic. Dr. Hingley on cross-examination did not agree with previous opinions that

the patient could be classed merely as a passive aggressive personality.

882

It was evident from this expert evidence that the decision on capacity to parent was

being made on the basis of Lake’s diagnosis and information in her hospital file as opposed

to actual observation of her behavior at home or with others. As the quote reproduced

above indicates, Hingley was basing his hypothesis of “capacity to parent” on what “type

of individual” was likely to abuse their children and whether Lake presented as that type

of individual. His evidence that medical staff on rounds also came to the conclusion that

she would be incompetent to parent, was based on their understanding of type of person

Lake was – they saw her as a diagnosis, as opposed to a particular person with a particular

ability to parent her particular child. Indeed, the psychiatrist called upon to confirm

Hingley’s expert opinion admitted that he had only seen her on one occasion in hospital.

And yet, that psychiatrist, having only seen her once and based on knowledge of her

882

Ibid at para 6.

290

diagnosis held that her “great deal of anxiety and emotional unpredictability that this

obviously can have adverse consequences for the baby.”

883

Four social workers also gave evidence: three felt that Lake could not parent and

one felt that she could. Evidence was also led that Lake had served as a babysitter in the

past. However, it is obvious in the judicial reasoning, first at trial and then at the Court of

Appeal, that the evidence of Hingley and his medical colleagues was the evidence valued

in coming to a decision. The trial judge concluded that,

taking the preponderance of the evidence as a whole and considering the expert

testimony and considering the testimony of the mother, herself, and my own

observation of her demeanor, I would say that in many respects the mother shows

a high degree of immaturity at the very least; in my view of that, I don’t think it

would be prudent for the court to allow the child to go back to the mother on any

condition.

884

The Court of Appeal was careful to review the changes that were brought about by

the Children’s Services Act definition of child in need of protection. The Court noted that

while poverty and circumstance had been the fundamental problems with which the Child

Welfare Act was concerned, the Children’s Services Act recognized that expert knowledge

on “troubled families” and the cause and effect of “family disruption” would now become

the focus of child protection law and practice.

885

The Court held, however, that only when

the child could be shown by the Agency to be in need of protection could the court then go

on to make a determination in the best interests of the child.

886

The Court was also careful to distinguish the case at hand from Maguire. Contrary

to the finding in Maguire, Lake was premised on using psychiatric evidence to prove a

883

Ibid at para 8.

884

Ibid.

885

Ibid at para 18.

886

Ibid at para 21.

291

mother’s future incapacity to parent her child. The Court held that “What evidence is

relevant will depend on the issues raised in each particular case. By the same token

evidence of future conduct may be adduced on behalf of a parent where it is relevant.”

887

Having just found that the Children’s Services Act was premised on the concept of a child

being in need of protection where psychiatric and psychological evidence could show cause

and effect of “family disruption”, the Court was essentially holding that the potential for

future risk evidenced by psychiatric and psychological opinion could in every case find a

child in need of protection. The Court held:

In my view, evidence is not restricted under the Act solely to the past conduct of

circumstances relating to the parent and the child. In many cases it is what those

circumstances and conduct may lead to that the need for protection arises. Where

it is relevant to the issues, then by its very nature expert opinion, particularly of

psychiatrists and social workers, is relevant and admissible in determining those

issues. Certainly the definition clauses defining a child in need of protection are

prospective in their reach.

888

In the jurisprudence following Lake, there is a noticeable shift to the use psychiatric

and psychological evidence to establish maternal unfitness and therefore, the child’s need

for protection. As Judge Daley explained in the following paragraph from Nova Scotia

(Minister of Social Services) v. L.M.C.,

889

“The child is not the focus of this application [to

find the child in need of protection]. Section 2(m)(iii) of the Act focuses on the person who

is caring for the child and that person's fitness, ability or willingness to properly care for

the child.”

890

Therefore, in L.M.C., while the psychiatric and medical evidence showed the

child to be “normal on each visit and was clean with no signs of abuse”

891

and

887

Ibid.

888

Ibid at para 22.

889

(1982), 53 NSR (2d) 7, NSJ No. 87.

890

Ibid at para 59.

891

Ibid at para 4.

292

“appropriately developed for her age and seemed to interact and socialize well… nothing

abusive or neglectful with the child itself,”

892

of concern to medical experts was the

mother’s abnormality and fitness to parent as determined by the psychiatric evidence. The

evidence of the psychiatrist found a number of indications of “maternal inadequacy” such

as the following:

The mother was generally unkempt in personal appearance. Dr. Butters stated that

the mother had a marked degree of maternal inadequacy evidenced by her

avoidance of eye contact with the child, the way she carried the child, "like a log",

few apparent mothering instincts and an apparent lack of concern for the child. He

believed the mother fulfilled the basic mothering duties, i.e. keeping the child clean

and fed, but she did not provide the other emotional and bonding needs. She is not

overtly psychotic but is very immature. The doctor also stated that symptoms of

maternal deprivation would not show up in the child until it was approximately six

months old. He was guarded in prognosticating stating that the mother may be able

to properly care for the child if she had social service aids and support and if she

had good motivation.

Some of the mother's behaviour, Dr. Butters noted, included inappropriate

laughter, a flat affect (did not appear to have any genuine emotion), a lack of

expression and emotion, a simplistic approach to mothering, no questioning about

the child's development and vague responses to questions.

893

Similarly, a pediatrician who saw the mother also found her to be abnormal and

inappropriate:

Dr. Goldbloom did, however, find that the mother was of concern. She was careless

in handling the child. He believes she lacks awareness of how a baby should be

handled and cared for. He described the mother's inappropriate behaviour

including giggling and her lack of attention. He describes her stability as being

abnormal.

Dr. Goldbloom describes the baby as being, in his words, at exceedingly high risk

and the possibilities limited. He is concerned, for example, that the mother insists

she loves the child, that she can look after the child herself and does not need

anyone's help. He noted that the absence of signs of neglect is not unusual in a child

of this age.

894

892

Ibid at para 6.

893

Ibid at paras 4-6.

894

Ibid.

293

It is obvious from Daley Fam. Ct. J.’s decision that he was highly influenced by this medical

evidence. In finding the child to be in need of protection he noted that, while the child was

currently normal and there were not yet any signs of abuse or neglect, Daley Fam.Ct.J. was

“mindful of the medical evidence which raised the possibility of the symptoms of parental

deprivation manifesting themselves six months or more after birth”.

895

In reiterating the

evidence he found to be persuasive in finding the child in need of protection Daley

Fam.Ct.J. legitimized this evidence as sufficient for finding that the child will inevitably be

in need of protection in the future:

I find that the mother has little regard for her personal appearance and physical

condition. I find that she exhibits maternal inadequacy in her contacts and

relationship with her child. For example, she has a simplistic approach to

mothering believing food, clothing and shelter are sufficient; she is careless in

caring for the child; eye contact and carrying are inappropriate; she lacks concern

for the child; does not respond consistently to offers to help her, which I believe

have been herculean, and refuses to recognize need for help. I find she is immature

and appears to be of low intelligence. She is generally unemotional, is

inappropriate in her behaviour and lacks expression. She is naive and lacking in

normal interpersonal, child caring and communication skills. She is forgetful and

has a short attention span. Her actions and reactions in court support the evidence

of the Minister in this regard.

896

This psychiatric record of maternal deficiency was used to predict and prove that the child

was in need of protection. Even though no harm or even substantial risk of harm to the

child was shown, the ability of the psychiatric and medical evidence to diagnose maternal

abnormality was enough to form a basis for finding the child in need of protection.

The record of cases decided under the Children’s Services Act in the 1980s shows

that the language of child protection jurisprudence had become highly medicalized. The

decisions of judges were starting to mirror the language of psychiatrists and doctors as the

decisions of specialist Juvenile court judges had mirrored the psychiatrists and doctors of

Nova Scotia’s system of institutions. With this mirroring, judicial decision making was

895

Ibid at para 58.

896

Ibid at para 60.

294

legitimizing the medical and psychiatric knowledge and its ability to effectively predict

one’s fitness to parent. Each finding of maternal unfitness necessitated the judge

reiterating, in his own words, why he found the mother to be inadequate, thereby

naturalizing a connection between maternal “abnormality” and fitness to parent. By the

1980s, these findings were largely couched in medical language. For example, in this

finding of unfitness by Niedermayer Fam.Ct.J., in 1983

897

it is still clear that while he uses

a language of medical/psychiatric knowledge he is very much relying upon a moralizing

discourse:

My opinion of Ms. F. is that she is a self-centered, hedonistic, frustrated,

demanding, uneducated and uneducable individual who has a low level of

comprehension, tolerance and aptitude in dealing with interpersonal relationships.

Her lack of personal medical care and social acumen presents a medically and

emotionally unstable individual. Her unwillingness to minimally respond to the

requests and advice directed to her by various agencies and professions indicate,

to me, a deep and disturbing flaw in her character.

898

Basing child protection finding decisions on medical and psychiatric evaluations of

maternal abnormality, without focusing on the effect that this abnormality had on the

child, confirmed that a medical or psychiatric diagnosis was capable of depriving a mother

of her child. Given that the parents involved in the child welfare system have for the most

part been marginalized by classed, raced, gendered and ableist systems of inequality it is

likely that they will be found to deviate from standards of “normalcy”. An emphasis on

psychiatric evaluations of abnormality rather than assessments of actual child functioning

also risked depriving a child of his or her parent without a careful consideration of just

how that parent’s deficiencies actually affected the child.

In the next chapter I will detail how, in response to this normalizing and moralizing

discourse of maternal fitness, children’s rights advocates began to argue for a more rights-

897

Children’s Aid Society of Halifax v LF, [1983] NSJ No 134.

898

Ibid at para 129.

295

oriented “least intrusive intervention” model of child protection. Family autonomy for

marginalized families, they argued, required seeing the limits of psychiatric evidence to

predict the future adjustment of children, and preventing judges from imposing largely

white, middle-class standards on families in poverty.

899

These reformers argued that

assessing the capacity to parent was a notoriously fraught exercise, subject to value

judgments and faulty assumptions about the future functioning of children. As such, they

argued that it had to be recognized that presumptively, the interests of the child were best

provided for in the home and only once it could be shown that parental conduct was

harming the child or placing the child at substantial risk of harm, should the child be

removed. In sum, they argued that the focus of child protection adjudication had to shift

from a detailing of maternal inadequacy to an analysis of the needs of the child and the

capacity of the state to meet these needs.

900

Conclusion

In chapter 4 we see that by the mid-50s there was generally a process of

“familialization”, even for mother-headed families and families in poverty taking place in

child welfare, social assistance, and child development quarters. The heyday of

institutionalization eventually came to an end in Nova Scotia and mothers’ allowances

were provided to most mother-headed families in order to allow these families to keep

their children at home. Child development knowledge was warning about the dangers of

institutionalization and the importance of maternal attachment. In this way, the social

assistance, and child development fields were serving to disconnect family autonomy from

a family’s ability to be economically self-sufficient. Families could remain together even if

899

See Wald, infra 935; Mnookin, infra, note 927.

900

Ibid.

296

they required public support. As long as the family was capable of providing for

relationships with the child to promote normal child development, both psychiatric and

child welfare quarters were willing to promote family autonomy, and importantly, the

family autonomy of mother-headed families.

But not all mother-headed families would be accorded public support in terms of

access to public assistance. While mothers’ allowances were introduced in Nova Scotia in

the 1930s, only certain types of mother-headed families were accorded support. Only

certain mother-headed families, and only then, those that satisfied investigators they were

fit and proper mothers, would receive mothers’ allowances. Furthermore, both immigrant

and aboriginal mothers were totally precluded from the scheme of mothers’ allowances,

regardless of family status or fitness. Child welfare authorities armed with professional

expertise and knowledge of child development and family casework became an important

source for not only providing services to mother-headed families in need of support, but

of determining their eligibility of certain mother-headed or functionally mother-headed

families to these services. While social assistance had long been predicated in this province

on determining between the “deserving” and “undeserving”, child welfare work was

capable of bringing these moralized determinations in line with more scientific notions of

normal child development and notions of proper motherhood.

There was one Canadian-born, non-Aboriginal mother-headed family in particular,

however, whose moral and psychological fitness was presumptively suspect: the unwed

mother-headed family. In social assistance and child development quarters in the post-

war era, the unwed mother came under immediate suspicion for her sexual promiscuity in

having sex before marriage and a child out of wedlock. As Suzanne Morton’s work has

shown, unwed mothers were actively encouraged by the CAS to give up their children for

297

adoption

901

and they were denied eligibility to mothers’ allowances until 1966. Psychiatric

and child development knowledge on attachment and deprivation constructed unwed

mothers as unable to adequately provide for normal child development. While a male-head

was no longer necessary in order to secure a sphere of privacy for the mother-headed

family, the absence of a male head in raising the child rendered the lone mother an object

of suspicion. For the unwed mother, her sexually promiscuous status served to validate the

suspicions of social assistance, CAS and child development professionals.

But unwed mothers did not simply capitulate to the social and economic

constraints to child-raising imposed on them and the demands of child welfare workers to

give their children up for adoption. Beginning in the 1950s there was a proliferation of

cases involving unwed mothers initiating legal action in order to rescind their consent to

adoption. The Supreme Court jurisprudence on natural parental rights developed in

opposition to received psychiatric knowledge about the deficiency of unwed mothers in

child development and child welfare quarters. The natural parental rights jurisprudence

shows judges contextualizing the positions of unwed mothers and the social and economic

constraints that led them to agree to the adoption in the first place. Even where judges

determined that the potential adoptive parents were wealthier or better suited in life to

care for the child, the rights of unwed mothers to custody of their children were affirmed.

Processes of familialization in general in this era required a more contextualized

notion of family autonomy than had been utilized by the courts in the institutional era of

child protection. Up until this time family autonomy was conceived of in terms of an

aggregate of individual privacy rights. Before an articulation of natural parental rights, the

liberal rights jurisprudence challenging juvenile court decisions was able only to articulate

901

Morton, “Nova Scotia and Its Unmarried Mothers”, supra note 571. As discussed above, this

position of the CAS may not have applied to African Nova Scotian unwed mothers, in part, because

of the lesser likelihood of finding an adoptive home for non-white children.

298

due process rights or the dismissing of applications for care. Now, by developing a notion

of family as opposed to individual liberty, the superior courts, and eventually family

courts, were able to challenge the determinations of psychiatrists and human service

professionals by articulating their own normative concept of the family as a fundamental

social unit of society. In this way, the family’s right to stay together and self-determine took

precedence over determinations of normalcy or fitness. Unlike the determinations of child

development and CAS professionals, judges were asserting that unwed mothers could not

be presumed to be unable to care for their children such as to presumptively justify state

intrusion into their families. In this sense, we see that the concept of natural parental rights

evidenced the responsive side of law – responding to the rights challenges of unwed

mothers and their demands for a presumption of the right to self-determine despite the

social stigma against them.

The concept of natural parental rights was an important and ultimately, productive

legal category. The concept was capable of asserting the rights of marginalized families and

of insisting on a testing of normalizing and moralizing determinations of the presumptive

need for state intervention into these families. But it was also a flexible legal concept

capable, in turn, of accommodating both a moralizing and normalizing regulation of

unwed mothers. Once a notion of family autonomy predicated on “natural rights” was

articulated, the whole of the “private sphere” of the family came under scrutiny in public

custody determinations. As we saw in the Supreme Court jurisprudence, while judges were

able to articulate a sphere of liberty for unwed mothers and families in poverty, the concept

was also capable of assimilating these natural rights with notions of white, upright,

industriousness, reproducing wider value judgments about the wrong “type” of mothers.

The concept of “child in need of protection” likewise shifted the focus of child

welfare determinations away from the child and away from the moralizing evaluations of

the philanthropic and child delinquency eras, ie., determinations predicated on “idleness”

299

and “dissolute” lifestyles, and onto parental conduct. Once this happened, the behaviour

of the mother and in particular, the unwed mother, come under direct legal scrutiny. While

her status as an unwed mother would no longer find her presumptively unfit, should she

display abnormal maternal behaviour she would be found to be unfit. Family autonomy in

the child welfare context became contingent on normal maternal conduct and in

particular, the mother’s ability to provide for normal child development. Both moralizing

and normalizing judgments about maternal “fitness” served to reproduce the raced,

gendered, ableist and classed value judgments from previous eras.

In the 1980s we begin to see greater use of psychiatric evidence of maternal

pathology relied upon in the jurisprudence. As Dr. Hingley states in the quote above from

Lake:

The first thing that really has caused me considerable difficulty is the fact that there

is very little published or very little that people or psychiatrists in general have

known or pediatricians for that matter as to how to protect - which individuals will

abuse their children.

902

In turn, by failing to scrutinize the ability of psychiatric and medical

determinations to predict what type of individuals will go on to abuse their children, child

protection law affirmed the predictions made by psychiatrists about the type of women

that would go on to abuse their children. As Golder and Fitzpatrick have put it, they affirm

that these knowledge claims made by disciplinary power are “in the nature of things”, or

in other words, are just simply claims to truth.

903

In the next chapter I will discuss what

the consequences have been for mothers once the jurisprudence affirmed that psychiatric

determinations could accurately predict which women would abuse their children. In other

words, which women posed legitimate “risks” to their children justifying subjecting them

to state surveillance, and possibly state removal of the child from the home. In the next

902

Lake, supra note 877.

903

Golder and Fitzpatrick, supra note 109 at 66.

300

chapter I will show that the same families that did not fit the “natural” or morally proper

ideal still continue to be over-represented in the child protection system: that is, families

that do not fit the industrious, white, male-headed and sexually appropriate ideal.

301

Chapter 5:

1980s to Present: Risk & Responsibility in Child Protection Jurisprudence

The idea of child abuse is not thereby idiosyncratic. In only one respect is it rare.

We live with and through a welter of conceptions that are at once moral, human,

social and personal, but there are, at any time, few fundamental concepts that we

can watch being made and molded before our very eyes. Many of our ideas have

histories similar to that of child abuse, but they are lost to conscious memory – just

as the traces of the evolution of the idea of child abuse are in most places being

erased at this very moment. But there are differences among thick moral concepts.

Child abuse is an instance of a special class. It is a normalizing concept.

904

In the 1970s, two strong critiques emerged of the child protection system in

Anglo-American countries; one from the psychiatric, and one from the legal community.

In particular, the psychiatric community argued that the discourse of parental rights in

child placement decisions had sacrificed the needs of the child to these parental rights.

They argued for a child protection system focused wholly on the needs of the child

regardless of parental claims to privacy. In contrast, a rights-based critique emerged from

the legal community that argued that the protection of family autonomy was in the best

interests of children as it prevented unwarranted, traumatic interventions by the state in

largely marginalized families. In the end, as I will show, these two seemingly disparate

views converged on the need to provide for family autonomy in the best interests of the

child. Both psychiatric and legal reformers argued that before the state could intrude into

the private sphere of the family to remove the child, there had to be a testing of the need

for intervention. They argued for an insistence on grounds for intervention tied to objective

harms or substantial likelihood of harms to children and a frank look at the effects of, and

end result of intervention: ie., removal of the children from a home, and into state care.

They argued for the provision of services to help families in poverty so that decisions to

904

Ian Hacking, “The Making and Molding of Child Abuse” (Winter 1991) 17 Critical Inquiry 253-

288.

302

remove the child were not predicated on a family’s impecunious state. And above all, they

argued for the needs of the child in need of protective services to always be at the forefront

of consideration.

In this chapter I will review the model of child welfare reform that emerged in the

1970s: the least intrusive intervention model of child protection. This model of child

protection was introduced in Nova Scotia in 1991 with the coming into force of the Children

and Family Services Act (the “CFSA”).

905

While the Act was meant to test potentially

coercive interventions of the state into the private sphere of the family, I will argue that

changes in funding for social services and changes to the nature of social work itself have

served to undermine some of the more robust protections envisioned by the CFSA.

Since the 1980s, social policy theorists have noted a return of child welfare to a

residual model of services. Much like the era in which the Prevention and Punishment of

Wrongs to Children Act was passed, we are seeing a renewed emphasis on family

responsibility to address poverty without substantive state support for the family.

Furthermore, much like this early era of child protection work, support for the poor is

focused on distinguishing between the “deserving” and the “undeserving poor” with the

“undeserving poor” singled out for especially punitive and repressive intervention. As in

the era of the Prevention and Punishment of Wrongs to Children Act, children are

understood as the members of the family that are deserving of state support while parents

in poverty are depicted as deviant, dependent and responsible for their marginalized

positions. Unlike child protection law and practice in the era in which the Prevention and

Punishment of Wrongs to Children Act was passed, however, the harms to children which

justify intervention and removal (where the judge determines this to be in the welfare) of

the child are not harms which are familiar from criminal law, vagrancy law and poor law

905

SNS 1990, c 5.

303

contexts, but from the psychiatric and child development contexts. Today, the way that

harms to children are evaluated and adjudicated upon are predicated largely upon

psychiatric and psychological determinations of harms and risks of harm to children.

Like social policy theorists, child protection scholars have argued that child

protection services have likewise seen a scaling back of government resources for child

protection services and further, that this change in funding has had an appreciable effect

on the way that child protection services are carried out in Canada.

906

For example,

observers argue that social service work with children has become more administrative,

with front line workers often having minimal contact with families.

907

Instead, decisions

for Agency intervention and child placement decisions are premised on standardized tests

of risk assessment and parenting capacity assessments which test a parent’s future

likelihood of neglecting or abusing the child.

908

As a result, by the time an application gets

to trial, a myriad of evidence, including expert evidence, has been compiled detailing

parental risk and parental deficit. However, as critical social work theorists have argued,

much like moralized determinations of “fitness” from earlier years, risk assessments hide

value judgments based on class, race, gender and family status. As a result, racialized

families

909

and mother-headed families

910

continue to be overrepresented in the child

906

Karen Swift and Marilyn Callahan, At Risk: Social Justice in Child Welfare and Other Human

Services (Toronto: University of Toronto Press, 2009).

907

Nigel Parton, “Challenges to Practice and Knowledge in Child Welfare Work: From the ‘Social’

to the ‘Informational’?” (2009) Child and Youth Services R 715; Carol Curtis, “The Limits of

Parenting Capacity Assessments in Child Protection Cases” (2009) 28 CFLQ 1; ibid.

908

Swift and Callahan, ibid.

909

Cindy Blackstock, When Everything Matters: Comparing the Experiences of First Nations and

non-Aboriginal Children removed from their Families in Nova Scotia from 2003 to 2005 (PhD

Thesis, University of Toronto, Factor Inwentash School of Social Work, 2009) [unpublished].

Blackstock found that First Nations children were removed from parental care 3.4 to 6 times more

often than non-Aboriginal children in Nova Scotia between 2003 to 2005: at 194.

910

Canada, Nico Trocmé et al, Canadian Incidence Study of Reported Child Abuse and Neglect –

2008 (National Clearinghouse on Family Violence, Public Health Agency of Canada, 2010).

304

protection system in Nova Scotia. Furthermore, a lack of material supports for these

families has resulted in socio-economically marginalized families experiencing a more

coercive, rather than a supportive intervention on behalf of child protection services.

911

In this Chapter I will argue that rather than challenging these trends, the

jurisprudence interpreting the CFSA has reinforced this shift in child protection services.

First, I will argue that decisions testing the need for state intervention have become more

focused on risk of harm to children; in particular, the grounds of neglect, emotional harm

and exposure to domestic violence have become common grounds for intervention. These

grounds are particularly amenable to risk assessment tools and expert evidence which base

the probability of harm on observations of parental behavior and evaluations of parental

deficit. As a result, protection stage findings become heavily focused on parental deficits

and not on proving harm to the child. Furthermore, these risks are particularly prominent

in families suffering socio-economic marginalization and yet, as critics of risk assessment

tools note, the professional evidence used to evaluate the presence of these risks do not

assess structural or environmental risks to the child. A focus on risk serves not only to

obscure the effects of socio-economic marginalization on parents and children, but it

serves to reinforce the idea that it is the behavior of parents alone that creates this situation

of socio-economic marginalization. Furthermore, parental behavior and not social and

economic inequality, are constructed as the real source of risk to children. Rather than

providing for a stringent testing of the need for state intervention this focus on parental

deficit constructs state intervention into the family as presumptively beneficial to children.

In this chapter I argue that child protection jurisprudence interpreting services and

time lines under the Act further reinforces the notion that risks to children are the result

of parental deficit only, and not the result of coercive state intervention or socio-economic

911

Nova Scotia, Minister’s Advisory Committee on Children and Family Services Act and Adoption

Information Act, Report (Halifax: Nova Scotia Community Services, May 2008) at 12-15.

305

risk. In the decisions interpreting the proper scope of services and the proper application

of time lines, judicial decision-making has interpreted state responsibility strictly,

mandating a strict adherence to the time lines, and justifying the provision of “soft”

912

services in the form of supervision, parenting education and capacity assessment services.

The provision of these services on a time-limited basis, as opposed to material supports

for families, both informs and is informed by the construction of “risky” parental behavior,

and not socio-economic marginalization, as the real source of risk to their children.

Counter to the child-centered reforms that were meant to usher in a “least intrusive

intervention” model of child protection, a focus on risk and parental conduct has served to

undermine a rigorous testing of both the need for, and the character of, state intervention

on behalf of children in marginalized families.

A Child-Centered System of Child Welfare

The era of “familialization” of the 1950s and 60s that emerged amidst of a critique of

institutionalization saw the Supreme Court of Canada insisting on a more rigorous testing

of the need for coercive state intervention into marginalized families. As opposed to

presuming the need to intervene in and remove children from unwed-mother-headed

families and other families in poverty, the Supreme Court affirmed at law the presumption

912

See for example, Michael Wald, “State Intervention on Behalf of “Neglected” Children: A Search

for Realistic Standards” (1974-1975) 27 Stan L R 985 at 997-998:

The effectiveness of other types of intervention is even more questionable. Social work

agencies generally provide two types of services: "hard" services, such as homemakers,

financial aid, and medical care; and "soft" services, such as individual and group counseling

or parent education programs. In most jurisdictions "soft" services are in considerably

greater supply than "hard" services." Despite approximately 70 years of experience, there

is remarkably little evidence demonstrating the usefulness of social work intervention,

particularly with regard to "soft" services. While there are numerous claims of success in

individual cases, the little existing hard data tend to indicate that providing such services,

at least to unwilling clients, is not very helpful.

306

that the best interests of the child were provided for in the home with the child’s natural

parents.

913

The jurisprudence of natural parental rights ultimately served to focus a great

deal of legal scrutiny on parental, and most often, maternal behavior. However, it also

served to challenge determinations made by judges, child welfare services and even child

development specialists which saw unwed mothers as presumptively unable to provide for

the best interests of the child. The Supreme Court of Canada trilogy, then, can be

understood as an affirmation of the presumption of family autonomy in “public”, as

opposed to private custody cases.

In 1973, shortly after this jurisprudence of parental rights, child development expert

Anna Freud, with the help of Albert Solnit of the Child Study Center at Yale University and

Joseph Goldstein of Yale Law School, published a psychoanalytic critique of the best

interests of the child standard.

914

They argued that the best interests standard in child

placement decisions had sacrificed children’s needs to parents’ rights.

915

Instead of

focusing on parental rights, they argued, more attention had to be paid to the needs of the

child. They argued that the best interests of the child standard had to have a renewed focus

on child wellbeing, which could be provided by psychoanalytic insights on child

development.

916

Freud, Goldstein and Solnit argued for standards in child placement

decisions based upon “the least detrimental available alternative for safeguarding the

child’s growth and development” drawing upon several principles of child development

913

Martin v Duffell, [1950] SCR 737, 4 DLR 1; Hepton v Maat, [1957] SCR 606; and Agar v

McNeilly, [1958] SCR 52.

914

Joseph Goldstein, Anna Freud and Albert Solnit, Beyond the Best Interests of the Child (New

York: The Free Press, 1973).

915

Ibid at 6.

916

Ibid at 7.

307

garnered from psychoanalytic insights.

917

The least detrimental alternative principle to

child placement had three components:

1. Placement decisions should safeguard the child’s need for continuity of

relationships;

2. Placement decisions should reflect the child’s not the adult’s sense of time; and

3. Child placement decisions must take into account the law’s incapacity to

supervise interpersonal relationships and the limits of knowledge to make long-

range predictions.

These guidelines were premised on the idea that child development theory and in

particular, attachment theory,

918

should guide placement decisions. Furthermore, child

development knowledge provided that a child’s sense of time was different than an adult’s

in that potentially very short periods of time could have fundamental effects on a child’s

growth, development and attachments with a “psychological” rather than a “natural

parent”. These two principles essentially formed the core of the “least detrimental

alternative.” The third guiding principle provided that child placement decisions had to

rely on the first two principles as they were the only guidelines that one could be sure

about. If the law attempted to impose other conditions on the child’s care that did not

accord with these principles, the law was in danger of introducing greater uncertainty into

the life of the child. The authors explained:

The law, then, ought to and generally does prefer the private ordering of

interpersonal relationships over state intrusions on them.

Yet the law does intrude. When it does, it becomes important for decisionmakers to

be guided by an understanding of the limitations not only of the legal process but

also of the predictive value of the knowledge on which its judgments can be based.

…As the continuity and the child’s-sense-of-time guidelines suggest, placement

decisions can be based on certain generally applicable predictions. We can, for

example, identify who, among presently available adults, is or has the capacity to

become a psychological parent and thus will enable a child to feel wanted….Further,

917

Ibid at 53.

918

That is, that children form psychological bonds with adults and these bonds are necessary for

normal development.

308

we can predict that the younger the child and the more extended the period of

uncertainty or separation, the more detrimental it will be to the child’s well-being

and the more urgent it becomes even without perfect knowledge to place the child

permanently. Beyond these, our capacity to predict is limited….Thus, the law will not

act in the child’s interests but merely add to the uncertainties if it tries to do the

impossible – guess the future and impose on the custodian special conditions for the

child’s care.

919

[emphasis added]

Freud, Goldstein, and Solnit’s guidelines for making child placement decisions

became highly influential in child welfare practice.

920

But their initial prioritizing of

“psychological” over “natural” ties also served as an argument to expand state intervention

into families on the basis of securing the psychological well-being of the child.

921

Counter

to the Supreme Court trilogy, in Beyond the Best Interests of the Child, Freud, Goldstein

and Solnit argued that in cases in which mothers were revoking their consent to adoption,

the court should be inquiring into which home would better provide for the psychological

well-being of the child, and not the rights of the mother.

922

While Freud, Goldstein and Solnit’s original thesis set out in the Beyond the Best

Interests of the Child was able to articulate a psychoanalytic concept of the best interests

of the child which provided a child-focused, and psychological basis of child placement

decisions, they failed to address the Supreme Court of Canada’s concern in the parental

rights trilogy. In particular, in taking for granted that “the law does intrude” the authors

failed to first answer the question: why does the law intrude on family autonomy? Two

experts in child welfare law – Michael Wald and Robert Mnookin – responded vociferously

919

Ibid at 51-52.

920

Nadine Taub, “Assessing the Impact of Goldstein, Freud, and Solnit's Proposals: An Introductory

Overview” (1983) 12 NYU R L & Soc Change 485.

921

See Michael Wald, “Thinking about Public Policy toward Abuse and Neglect of Children: A

Review of Before the Best Interests of the Child” (1979-1980) 78 Mich LR 645 at 646.

922

Beyond the Best Interests of the Child, supra note 914 at 78-79.

309

to Freud, Goldstein and Solnit, arguing that they failed to fully account for the complexities

involved in the state intervention occasioned by child welfare systems. In particular, they

argued that an “understanding of the limitations not only of the legal process but also of

the predictive value of the knowledge on which its judgments can be based”

923

spoke in

favour of a presumption of family autonomy, not state scrutiny.

Robert Mnookin, for example, agreed that the best interests of the child principle

was indeterminate and required greater certainty in application, but ultimately disagreed

with the thesis in Beyond as to how to address this indeterminacy. Mnookin argued that

the best interests test that guided child placement decision was indeterminate first,

because “[f]or most custody cases, existing psychological theories simply do not yield

confident predictions of the [long-term] effects of alternative custody dispositions.”

924

Second, he argued that “even if accurate predictions were possible in more cases, our

society today lacks any clear-cut consensus about the values to be used in determining

what is ‘best’ or ‘least detrimental’” in terms of child protection interventions.

925

Furthermore, he argued that different functions undertaken in the private and public

child custody arenas justified establishing different best interest tests for these arenas.

While Freud, Goldstein and Solnit may provide helpful guidelines for private custody

decisions or for public custody decisions once neglect or abuse has been established,

Mnookin argued that they failed to account for the need for the state to justify the initial

intervention into the family. He provided the following explanation of the distinction

between the public and private functions of child custody adjudication:

An important distinction between the two functions is their relation to the

distribution of power between the family and the state. Legal standards for private

923

Ibid at 51-52.

924

Robert H Mnookin, “Child-Custody Adjudication: Judicial Functions in the Face of

Indeterminacy” (1975) 39 L & Cont Prob 226.

925

Ibid.

310

dispute settlement guide judicial resolution of a private controversy. In this instance,

authoritative resolution does not in itself expand the state's role with regard to child

rearing. Legal standards for the child-protection function, on the other hand, act

both to define when government may intrude into the family and to control child

rearing through coercion. Defining the appropriate scope of the child-protection

function is therefore necessarily related to profound questions of political and moral

philosophy concerning the proper relationship of children to their family, and the

family to the state.

926

He argued that an indeterminate best interests standard in the context of public

custody decisions could “in fact [be] used to shelter from explicit analysis other (often

inappropriate) considerations” by judges.

927

A vague best interests standard he argued: “is

inconsistent with the proper allocation of responsibility between the family and the

state”

928

; it “allows a court to evaluate parental attitudes and behaviour on the basis of the

judge’s personal values”

929

; it increased the potential for courts underestimating the risks

of removal

930

; and it failed “to require judicial evaluation of alternatives to removal”

931

In the face of such indeterminacy, Mnookin laid out the framework for a child

protection system that was premised on family autonomy characterized as a starting point

that “assumes that power and responsibility for children generally ought to be vested in

private hands - essentially the family except in cases where government rule can be

justified.”

932

He advocated for a two-part principle of reform that would both limit the

number of children entering foster care and assure that the child’s sense of time was

926

Ibid at 265.

927

Ibid at 293.

928

Ibid at 268.

929

Ibid at 269.

930

Ibid at 270.

931

Ibid at 272.

932

Ibid at 266.

311

respected by moving them through foster care more quickly. His principle argued for a

more determine standard of removal and the curtailing of judicial discretion with the

following standard:

A state may remove a child from parental custody without parental consent only if

the state first proves: (a) there is an immediate and substantial danger to the child's

health; and (b) there are no reasonable means acceptable to the parents by which

the state can protect the child's health without removing the child from parental

custody.

933

Because families involved in the child protection system are often marginalized, he

argued that determinate standards that both hold the social welfare bureaucracy

accountable and that curb judicial biases would create more fairness in the process for

these families. Mnookin argued for ensuring a testing of the need and quality of state

intervention in the family is integral to the best interests of the child. Without respecting

family autonomy we could be making manifestly unjust decisions by removing children

from poorer homes to wealthier homes, for example; we could be allowing judges to

substitute their values for those of the family of the child in such a way that makes

moralizing judgments of those families; and we could be underestimating the risks of

removal.

934

Like Mnookin, Michael Wald insisted that state intervention should only be justified

on the basis of evidence of objective harm to the child, and not on an evaluation of the type

of parent before the court. Likewise, he argued in favour of family autonomy in the face of

the indeterminacy of evaluations to effect the best interests of the child. Fundamentally,

Wald questioned the efficacy and the fairness of basing decisions to intervene on

judgments as to the proper way to parent or predictions as to the best way to produce a

933

Ibid at 278.

934

Ibid at 282-283.

312

“healthy adult”. For example, he pointed to longitudinal studies of child development

which showed that psychologists were unable to predict future behaviour from child

rearing practices in two-thirds of cases.

935

Therefore, like Mnookin, Wald began his argument for a child protection system

based on the principle of family autonomy by fundamentally questioning the value of state

intervention in cases of neglect. In doing so, Wald pointed to the psychological damage

that could arise from apprehending a child: “damage more serious than the harm

intervention is supposed to prevent”.

936

Further, Wald warned that child protection

authorities could not ensure in every case that a child would be placed in a home superior

to his or her own. Therefore, Wald argued that legal proceedings around child protection

had to weigh the risks of removal against the objective harms that were present in the

home, in determining whether state intervention was warranted.

In Wald’s formulation of the least intrusive intervention, strictly defining harms

from which we as a society wish to protect children, helps to ensure not only that decisions

were not reproducing cultural biases but that the harm caused by the intervention would

be more beneficial than the living situation the child was currently in.

937

Wald argued that

if decisions are made which focus on parental fault rather than harms to and the needs of

the child, intervention could disrupt an environment in which the child was functioning at

an adequate level. Therefore, in developing a statutory definition of neglect, Wald argued

that the harm caused by the neglect must be serious and it must be a type of harm for which

the remedy of intervention would do more good than harm. Wald argued that intervention

should only be permissible:

935

Michael Wald, “State Intervention on Behalf of “Neglected” Children: A Search for Realistic

Standards” (1974-1975) 27 Stan L R 985 at 992.

936

Ibid at 994.

937

Ibid at 1001.

313

[W]hen a child has suffered or is likely to suffer serious physical injury as a result of

abuse or inadequate care; when a child is suffering from severe emotional damage

and his parents are unwilling to deal with his problems without coercive

intervention; when a child is sexually abused; when a child is suffering from a serious

medical condition and his parents are unwilling to provide him suitable medical

treatment; or when a child is committing delinquent acts at the urging or with the

help of his parents.

938

Although Wald provided this list of harms for which intervention would be justified, he

argued that the decision to intervene would still have to be made on a case-by-case basis.

939

This child-focused approach would assure that the best interests of the child were being

adhered to, and that decisions were not based solely on the court or agency’s rejection of

parental conduct or lifestyle. Understanding how removal may be damaging to a child,

Wald advocated considering all other measures to ensure that the child’s needs may be

met in the home, before removal.

For children from marginalized families ensuring that measures were taken to keep

the child in the home entailed providing families with sufficient housing, income and other

resources in order to ensure that the family’s poverty was not the underlying reason for

removal. He wrote

In most such cases, intervention would not require removing the child. Rather

services could be provided to help parents meet the child's emotional needs and to

provide the parents with ways of handling the child that do not involve physical

harm. Such help can take many forms: financial support, provision of support

services such as day care or homemakers, or therapy for the parent. Since, in my

experience, the families who would come under these standards are doing a minimal

job, at best, of meeting the child's psychological needs, it seems unlikely that state

intervention will harm children by making their parents appear less autonomous. In

fact, intervention may help the many parents who are far from autonomous become

more autonomous. By providing parents with useful services, economic support, and

viable ways of dealing with their children, services can improve the parents' self-

confidence and esteem. The child's view of the parents is likely to improve as well.

940

938

Ibid at 1008.

939

Ibid at 1012.

940

Wald, “Thinking about Public Policy”, supra note 921 at 674.

314

Wald advocated a bifurcated hearing process. The first stage of the hearing would

test whether or not state intervention into the family was warranted and the second stage

would allow a judge to make an order in the best interests of the child.

941

In this way, testing

objective harms to the child would assist in constraining potentially unwarranted state

intervention and direct state care towards remedying harm to the child. Only once harm

had been established to the child could the judge engage on making the child placement

decisions that Freud, Goldstein and Solnit’s psychoanalytic model was meant to inform.

Above all, Wald warned, “In each specific case, a court must decide two questions: (i)

whether the child is suffering a harm which meets the statutory definition; and (2)

whether, in the given case, intervention is likely to do more good than harm.”

942

In 1979, Freud, Goldstein and Solnit released their follow-up work to Beyond the

Best Interests of the Child. Essentially, the book was a response to critics such as Wald and

Mnookin. In addressing criticism that the authors had not provided a best interests

standard that was attendant enough to the different functions of public, rather than private

custody disputes, the authors developed a best interests standard that was applicable to

child protection cases. In particular, the authors used their psychoanalytic model to argue

against state intervention and in favour of family autonomy. First the authors argued that

a child’s attachment to a “psychological parent”, in most cases will be a parent with whom

they have been since birth. They argued that the importance of this psychological

relationship and continuity in the context of this relationship spoke in favour of state

941

Michael S Wald, “State Intervention on Behalf of Endangered Children: A Proposed Legal

Response,” 6 (1982) Int J of Child Abuse and Neglect 3 at 4.

942

Wald, “State Intervention on Behalf of ‘Neglected’ Children”, supra note 935 at 1007.

315

intervention to remove the child from this relationship only in extreme cases.

943

Second,

Freud, Goldstein and Solnit argued that the intervention itself could be detrimental to the

child’s psychological well-being. They wrote:

When family integrity is broken or weakened by state intrusion, [the child’s] needs

are thwarted and his belief that his parents are omniscient and all-powerful is

shaken prematurely. The effect on the child’s developmental progress is invariably

detrimental.

944

Therefore, the authors used a concept of the child’s need for psychological

continuity and security to ground a claim for a strong presumption of family autonomy.

Even placing the family under a supervision order, they argued, was detrimental to a

child’s psychological well-being as it introduced uncertainty and compromised the child’s

view of her parents as autonomous and “all-powerful”. Freud, Goldstein and Solnit

therefore articulated a psychoanalytic account of family autonomy that was predicated in

part on the child’s right to “autonomous parents”.

945

By the 1980s, their psychoanalytic

model of family autonomy was accepted and practiced as part of "permanency planning"

theory which favoured "family preservation" (leaving a child with parents whenever

supports could be provided to minimize risks) over intervention.

946

Legislating a Least Intrusive Model of Child Protection

This new model of the “least intrusive intervention” model of child protection

provided for a testing of the need for state intervention into the family to ensure that states

943

Joseph Goldstein, Anna Freud and Albert Solnit, Before the Best Interests of the Child (New

York: The Free Press, 1979) at 7. For Wald’s critique of Before the Best Interests of the Child see,

Wald, “Thinking about Public Policy,” supra note 921.

944

Before the Best Interests of the Child, ibid at 8-10.

945

Ibid at 14.

946

Nicholas Bala, “Reforming Ontario’s Child and Family Services Act: Is the Pendulum Swinging

Back too Far?” (1999) 17 CFLQ 121 at 123.

316

were not unduly intruding on the private sphere of the family and violating family

autonomy and integrity. Ontario, quickly followed by Alberta, were the first provinces in

Canada to introduce this model of child protection.

947

These reforms were instituted in

Nova Scotia in 1991 with the introduction of the Children and Family Services Act

948

(the

“CFSA”) which replaced the Children’s Services Act

949

(the “CSA”). It is noteworthy,

however, that in the 17 years between the release of Beyond the Best Interests of the Child

and the introduction of the CFSA in Nova Scotia, social work practice had begun to adopt

the guidelines set out by Freud, Goldstein and Solnit in working with children and in

particular, in making child placement decisions based upon the least detrimental

alternative.

950

947

Ibid at 125:

The move towards a "family autonomy" model was perhaps most clearly apparent in the

Ontario Child and Family Services Act of 1984. [SO 1984, c 55; see also Alberta's Child

Welfare Act, SA 1984, c C-8.1] This Act included statements of principle that favoured

"support for the autonomy and integrity of the family" and the "least disruptive alternative"

for agency intervention. The definition of "child in need of protection" was narrowed. Vague

grounds for agency intervention, like "parental unfitness," were eliminated, and the basis

for state intervention was restricted to situations where there was a clear risk of serious

harm to the child. If a court sanctioned state intervention, there was an onus on the agency

to justify removing the child from the home rather than providing support in the home.

There was encouragement for the involvement of aboriginal communities in child welfare

decision-making and service provision; for aboriginal children removed from parental care

there was a statutory preference for placement in aboriginal homes.

948

SNS 1990, c 5.

949

SNS 1976, c 8.

950

Bala, “Pendulum Swinging Back too Far?”, supra note 947:

However, arguments in favour of leaving children in parental care in all but the clearest

cases of abuse or neglect were forcefully articulated in the 1970s by the influential American

scholars Goldstein, Freud and Solnit, who advocated preserving "continuity of

relationships." Their ideas came to be reflected in the "permanency planning" theory.

Permanency planning advocates favoured "family preservation" — leaving a child with

parents whenever supports could be provided to minimize risks — and making decisions as

early as possible in life to remove children from inadequate parents and place the child in

another "permanent" home. In practice, however, at least in the 1980s, the family

preservation aspects of permanency planning were emphasized while making early removal

decisions was not emphasized.

317

Therefore, when the CFSA came into force on September 3, 1991, it served to

legalize this shift to a focus on objective evidence of harm in guiding evaluations of the

need for state intervention, and a more child-focused standard in child placing decisions.

In sum, the introduction of the least intrusive intervention standard marked a shift from

the child welfare system set out in Chapter 4, to a more exacting, legalistic and rights-based

approach to “child protection”. The introduction of the CFSA, and the repeal of the CSA

defined and strictly adhered to timelines and mandated the provision of services. It more

clearly delineated a “finding” stage hearing to test the need for intervention and a

disposition-stage “best interests” stage to guide child placement, and importantly,

introduced more objective, evidence-based harms for intervention.

The Act evidenced a concerted focus on the child and the child’s needs in the

Preamble, for example. The Preamble squarely places the child’s needs and rights as the

focus of the Act, recognizing the importance of the child’s sense of time, in continuity in

relationships and the promotion of healthy child development:

WHEREAS the family exists as the basic unit of society, and its well-being is

inseparable from the common well-being;

AND WHEREAS children are entitled to protection from abuse and neglect;

AND WHEREAS the rights of children are enjoyed either personally or with their

family;

AND WHEREAS children have basic rights and fundamental freedoms no less than

those of adults and a right to special safeguards and assistance in the preservation of

those rights and freedoms;

AND WHEREAS children are entitled, to the extent they are capable of

understanding, to be informed of their rights and freedoms, to be heard in the course

of and to participate in the processes that lead to decisions that affect them;

AND WHEREAS the basic rights and fundamental freedoms of children and their

families include a right to the least invasion of privacy and interference with freedom

that is compatible with their own interests and of society's interest in protecting

children from abuse and neglect;

AND WHEREAS parents or guardians have responsibility for the care and

supervision of their children and children should only be removed from that

supervision, either partly or entirely, when all other measures are inappropriate;

AND WHEREAS when it is necessary to remove children from the care and

supervision of their parents or guardians, they should be provided for, as nearly as

318

possible, as if they were under the care and protection of wise and conscientious

parents;

AND WHEREAS children have a sense of time that is different from that of adults

and services provided pursuant to this Act and proceedings taken pursuant to it must

respect the child's sense of time;

AND WHEREAS social services are essential to prevent or alleviate the social and

related economic problems of individuals and families;

AND WHEREAS the rights of children, families and individuals are guaranteed by

the rule of law and intervention into the affairs of individuals and families so as to

protect and affirm these rights must be governed by the rule of law;

AND WHEREAS the preservation of a child's cultural, racial and linguistic heritage

promotes the healthy development of the child.

Pursuant to the provisions of the CFSA, a child will only be found to be “a child in

need of protective services” by the state where the child has suffered harm or there is a

substantial risk that the child will suffer harm and the child’s parent/s or guardian/s are

unwilling or unable consent to services or otherwise alleviate the harm or risk of harm.

951

Thompson explains the significance of this shift:

Just as the 1976 Nova Scotia Act substituted the more neutral “child in need of

protection” for the former fault-oriented “neglected child” [in the 1967 Act], so too

the new Act demonstrates a slight shift in emphasis, using the Alberta phrase “child

in need of protective services”. A child in these situations needs not “protection” from

parents, but the child and his or her family require the provision of “protective

services”, with a view to maintaining the family intact or reuniting the family. In this

sense, the very language reinforces the service orientation of the new Act.

952

The Preamble to the CFSA was not only child-focused but it was meant to recognize

the reality that many of the families involved with the child protection system were families

living in poverty. The preamble provides that, “social services are essential to prevent or

alleviate the social and related economic problems of individuals and families.”

Furthermore, in recognition of the fact that coercive state intervention is warranted only

where the family does not voluntarily agree to these offered services, the grounds for

finding a child to be in need of protective services under the CFSA provide that substantial

951

CFSA, s 22.

952

Thompson, supra note 842 at 39.

319

risk of harm will be found not just where substantial risk to the child can be shown, but

where the parent or guardian “does not provide, or refuses, or is unavailable or unable to

consent to, services or treatment to remedy or alleviate the harm”.

953

Once state intervention has been justified on the basis that the child is in need of

protective services and the court looks to make child placement decisions, the Act provides

that no order for child placement can be made without the agency setting out a plan for

the child’s care.

954

The Agency’s plan must include: a description of services; a statement

of the criteria by which the Agency will determine when its care and custody or supervision

is no longer required; an estimate of the time required to achieve its purpose; where the

child is removed from parental care the Agency must state why and what efforts are

planned to maintain contact with parents; where the Agency wants to remove the child

permanently, a description of arrangements made for the child’s care.

955

The Act also

provides that “the court shall not make an order removing the child from the care of the

parent or guardian unless the court is satisfied that less intrusive alternatives, including

services to promote the integrity of the family pursuant to section 13,” have been tried and

failed, have been refused, or would be inadequate to protect the child.

956

Section 13 of the

Act provides that services are necessary to promote the principle of least intrusive

intervention and therefore the “Minister and the agency shall take reasonable measures to

provide services to families and children that promote the integrity of the family.” Section

13 provides for the following services to promote the integrity of the family:

Services to promote integrity of family

13 (1) Where it appears to the Minister or an agency that services are necessary to

promote the principle of using the least intrusive means of intervention and, in

953

See sections 22(2)(e), (f), (g), (h), (i), (j), (k), (l), and (m).

954

Section 41(2).

955

Section 41(3).

956

Section 42(2).

320

particular, to enable a child to remain with the child's parent or guardian or be

returned to the care of the child's parent or guardian, the Minister and the agency

shall take reasonable measures to provide services to families and children that

promote the integrity of the family.

(2) Services to promote the integrity of the family include, but are not limited to,

services provided by the agency or provided by others with the assistance of the

agency for the following purposes:

(a) improving the family's financial situation;

(b) improving the family's housing situation;

(d) improving child-care and child-rearing capabilities;

(e) improving homemaking skills;

(f) counselling and assessment;

(g) drug or alcohol treatment and rehabilitation;

(h) child care;

(i) mediation of disputes;

(j) self-help and empowerment of parents whose children have been, are or

may be in need of protective services;

(k) such matters prescribed by the regulations.

Importantly, pursuant to Wald and Mnookin’s framework, the CFSA sets out the

objective harms that the CAS would have to prove on a balance of probabilities in order to

justify state intrusion into the private sphere of the family. The harms or substantial risk

of harms

957

for which a child can be found to be in need of state protection include the

following: physical harm, sexual abuse, failure to provide required medical treatment for

a physical, emotional, mental or developmental condition,

958

emotional harm, physical

harm caused by neglect, physical or emotional harm due to exposure to repeated domestic

violence, abandonment, the child under twelve has killed or seriously injured another

person or caused serious damage to another person’s property, or has on more than one

occasion injured another or caused loss of damage with the encouragement of a parent or

because of the parent’s inability to supervise the child.

959

957

Section 22(1) of the CFSA provides that "substantial risk" means a real chance of danger that is

apparent on the evidence.

958

CFSA, s 22(2)(e) and s 22(2)(h)

959

See section 22(2).

321

While the grounds for defining a child to be in need of protection under the CSA

still contained notions of “propriety” and “fitness” allowing for value judgments – from

judges, social workers, doctors and psychiatrists – the grounds contained at section 22 of

the CFSA are meant to be objective, evidence-based and require actual proof of harm. D.A.

Rollie Thompson explains the significance of the shift from the harms contained under the

CSA to those under the CFSA:

The definitions of “child in need of protection” under the Children’s Services Act

were subject to much criticism. The broad and vague language of s. 2(1)(1), in such

terms as “without proper supervision or control”, “living in circumstances that are

unfit or improper” or “in the care or custody of a person who is unfit, unable or

unwilling to exercise proper care”, gave little guidance to agencies or courts,

allowing too much scope for personal value judgments and uneven and arbitrary

application. Moreover, this archaic language bore little resemblance to the

standards actually applied by social workers, health professionals and others in the

protection field, who speak of physical abuse, sexual abuse, failure to thrive, etc.

Lastly, the older “child welfare” approach tended to focus attention upon the home

environment and parental misconduct, rather than any specific harm to the

child.

960

The harms included at s. 22(2) of the Act are drawn almost verbatim from Wald’s

suggestions.

961

While they necessarily involve a consideration of the result of parental

conduct, they do not focus on parental conduct itself. Instead they are meant to focus very

directly on the child and harms evidenced by observation of the child. For example, the

ground of “neglect” has been replaced by a harm-centered focus on “physical harm” caused

960

Thompson, The Annotated Children and Family Services Act, supra note 842 at 39.

961

See Wald, “State Intervention on behalf of ‘Neglected’ Children”, supra note 935 at 1008:

To summarize my conclusions, coercive intervention should be permissible only when a child

has suffered or is likely to suffer serious physical injury as a result of abuse or inadequate

care; when a child is suffering from severe emotional damage and his parents are unwilling

to deal with his problems without coercive intervention; when a child is sexually abused;

when a child is suffering from a serious medical condition and his parents are unwilling to

provide him suitable medical treatment; or when a child is committing delinquent acts at the

urging or with the help of his parents. Although more restrictive than existing law, these

categories are similar to those covered by existing law. However, each harm is specifically

defined; and the definition is drafted in terms of symptoms evidenced by the child, not in

terms of parental conduct.

322

by neglect. The ground of emotional harm, for example, is not a stand-alone ground – it

must be proven by objective evidence of “severe anxiety, depression, withdrawal, or self-

destructive or aggressive behaviour”

962

exhibited by the child. Therefore, the introduction

of the Act and the replacing of the definition of “child in need of protection” with “child in

need of protective services” were meant to indicate a preference for a harm-based,

objective evaluation of the need for state intervention in line with the least intrusive

intervention standard. Following Wald’s formulation, setting out distinctly which harms

constituted a child in need of protection would help eliminate judicial moralizing from

evaluations of fitness and ensure that family privacy would be protected from undue

intrusion by the state. Furthermore, the requirement that the state must show that it

provide services to the family, and the judge’s obligation to the agency plan of care before

child placement decisions which removed the child from the home could be made, were

meant to test the actual character of that intervention.

It is also important that the grounds themselves are meant to promote the

recognition that services are in the interests of promoting family autonomy. Most of the

enumerated grounds provide that a child will only be found to be in need of protection

where the parents are refusing services or where services are inadequate to protect the

child. In all of these grounds, except for those listed at s. 22(2)(a) to (d) (physical and

sexual abuse) there is a requirement that the child be found to be suffering these harms or

to have suffered these harms (or risk of harm) and the parent refuses to accept services, or

services would be inadequate to protect the child in the parent or guardian’s care.

The reforms advocated by child protection reformers in the 1970s and 80s attempted

to secure family autonomy in the best interests of children by re-erecting a sphere of liberty

around marginalized families and removing the moralizing regulation of parental rights

962

CFSA, s 22(2)(i).

323

that we saw in Chapter 4, as well as calibrating the potential coerciveness of state

intervention with the family relative to the services provided. However, at the same time,

substantive support for families in poverty was being scaled back, both by the welfare state

and by changes to child protection practice. Only six months before the CFSA came into

force, in-home services provided by Community Services was cut in half.

963

Furthermore,

evaluations of harm to the child were becoming more “risk focused”; that is, more reliant

on psychiatric evidence to point out abnormal behaviours.

The confluence of a privatization of support and an increasing reliance on “risk” in

child welfare practice has resulted in what child protection theorists have a labelled a

return to a “residual”

964

model of child protection.

965

What reformers like Wald and

Mnookin did not see when writing in the mid-1970s, was that society’s views on

appropriate support for marginalized families were changing with the rise of neoliberalism

and the scaling back of the welfare state. Nor did they foresee that the project of defining

and regulating child abuse would come to be so thoroughly dominated by expert

assessments of risk.

966

The prime source of coercion in the lives of marginalized families

963

Correspondence with DA Rollie Thompson, QC (31 May 2015) [on file with author].

964

See Lessard, “Empire of the Lone Mother”, supra note 116 at 722. Lessard defines a residual

model of child protection in the following manner:

The residual model of welfare defines the sphere of state engagement in welfare provision

in negative terms and accords the primary role in addressing need and providing for the

material support and welfare of individuals to the family and other institutions of the

private sphere, most notably the market. To this extent the residual model reflects classical

liberal values of individualism, self-reliance, and negative liberty.

See also, Peter M Cabrera, “An Examination of the Persistence of the Residual Child Welfare System

in the United States: Addressing Charges of Radical Theoretical Myopia with Implications for Social

Work Practice” (2009) 20 J of Prog Human Serv 26.

965

Lessard, ibid at 751.

966

It is important to note, however, that by 1990 Wald was very much aware of the prevalence of

risk assessment tools and in the following article expressed concern over the methodological

deficiencies of risk assessment tools. See Michael S Wald and Maria Woolverton, “Risk Assessment:

The Emperor’s New Clothes?” (1990) LXIX Child Welfare 483.

324

in the child protection system would not just come from the biased decision-making of

middle class, white judges and social workers, but from the expanding and “objective”

definitions of harm, risk of harm, and best interests being developed by psychiatrists and

psychologists and the hollowing out of material support for families in poverty. While

Wald and Mnookin insisted on tying intervention to objective harms to the child – thereby

hoping to limit coercive state interventions into the family – they weren’t yet able to see

how a myriad of “abnormal behaviours” would come to be classified as harms or risk of

harms to children, extending surveillance and control over marginalized families.

Neoliberal Restructuring of the Welfare State

The 1970s in Canada saw high unemployment, high inflation and a growing public

debt. This era also saw the articulation of a new way of organizing government that had

been developing in Britain and the United States. After almost three decades of expanding

social security in Canada, reformers were demanding cutbacks in government spending

including the curtailment of universal programmes and tighter controls on eligibility for

government assistance.

967

In 1975, the government announced that it would be cutting $1.5

billion from its 1976-77 expenditures by reducing government spending on wages and

social programs.

968

By 1978, eligibility for Unemployment Insurance was narrowed and

benefit levels were reduced from 67% to 60% of weekly earnings.

969

The Minister of

Finance at the time, Bud Cullen, declared that the purpose of the change was to “make it

more attractive for potential unemployed insurance claimants to accept jobs now paying

967

Guest, The Emergence of Social Security, supra note 207 at 196.

968

Ibid.

969

Ibid at 197.

325

close to the current level of benefits.”

970

Cost savings from these measures would be used

to implement “job-creating programmes”.

971

Employability was to be the central theme of

the emerging neoliberal agenda.

The rise of neoliberalism beginning in the 1970s rang the death-knell for Keynesian

social liberalism.

972

The notions of mutual responsibility which provided the impetus for

the development of the Unemployment Insurance Act of 1944, for example, were being

replaced with the idea that government intervention was responsible for the state of the

country’s high levels of debt, unemployment and inflation. The federal government

pointed to generous social programs as the cause of Canada’s debt – arguing by the mid-

80s that smaller government was the answer.

973

In line with neoliberal thinking, the

Conservative government of the mid-80s depicted big government as stifling of

individuality, entrepreneurship and liberty. As Kim Campbell expressed in those days,

“Our Government does not view Canadians as victims and does not see it as the role of

government to perpetuate weakness and dependency.”

974

Instead of the large social

security apparatus of the post-war welfare state, the government advocated targeting

social programs and greater reliance on families and charitable organizations for caring

services.

975

970

Ibid at 201.

971

Ibid.

972

Rianne Mahon, “Childcare and Varieties of Liberalism in Canada” in Alexandra Dobrowolsky,

ed, Women and Public Policy in Canada: Neo-liberalism and After? (Oxford: Oxford University

Press, 2009) at 48 at 55.

973

Maureen Baker and David Tippin, Poverty, Social Assistance, and the Employability of

Mothers: Restructuring the Welfare States (Toronto: University of Toronto Press, 1999) at 70.

974

Sylvia Bashevkin, Welfare Hot Buttons: Women, Work, and Social Policy Reform (Toronto:

University of Toronto Press, 2002) at 31.

975

Baker and Tippin, supra note 973 at 70.

326

Neoliberal restructuring of the welfare state in Canada saw clawbacks to child care

subsidies; a greater emphasis on stricter public enforcement of private responsibility for

social reproduction, such as child and spousal support;

976

and the overall decline of social

service spending. In 1996, with the elimination of the Canada Assistance Program, the

federal government provided a single block of funding to the provinces in the form of the

Canada Health and Social Transfer (CHST).

977

The CHST reduced the amount the federal

government provided to the provinces for social services and gave the provinces back

control of how the money was to be spent.

978

With a decentralized system of social

assistance, there would no longer be a uniform system of eligibility across the country.

Instead of investing more money in the welfare state, the provincial governments focused

on instituting work-for-welfare schemes (ie., “workfare”) and emphasized the importance

“personal responsibility”

979

and of making recipients “job ready”.

980

In the neoliberal agenda of small government and individual responsibility, workfare

became a way of constructing welfare as a temporary respite for persons to take the time

and opportunity to adjust their own behavior to the demands of the marketplace. Job skills

upgrading, testing, assessments and even substance abuse screening emphasized that

recipients’ need for welfare was caused by their own shortcomings which resulted in a lack

of success in the labour market. In contrast to the welfarist thinking that expanded the

post-war social security system in Canada, in the neoliberal mindset, material deprivation

976

Brenda Cossman, “Family Feuds: Neo-Liberal and Neo-Conservative Visions of the

Reprivatization Project” in Cossman and Fudge, eds, Privatization, Law, and the Challenge to

Feminism (Toronto: University of Toronto Press, 2002).

977

Baker and Tippin, supra note 973 at 86.

978

Ibid.

979

Bashevkin, supra note 974 at 31.

980

Ibid.

327

is not as a result of inequalities built into advanced capitalism, but rather matters of

individual human failing. Such an emphasis on the individual and personal responsibility

was necessary for governments to step out of the business of subsidizing the risks inherent

in a capitalist system.

Furthermore, instead of socializing the costs of caretaking work, neoliberal

restructuring emphasized that such work should be borne by the private sphere, by

families and the marketplace. By tying welfare eligibility to workfare, the labour that

mothers put into caretaking work is not valued or considered “work” at all. Instead,

through workfare, mothers were told that only labour conducted in marketplace had any

value. The costs for reproductive labour undertaken in the home, was a matter of private,

not public responsibility.

This devaluing of reproductive labour is evident in neoliberal welfare reforms that

took place in Nova Scotia in 2000. As Stella Lord has written, “lone mothers on welfare in

Nova Scotia were relatively protected from compulsory employability requirements until

the Employment Support and Income Assistance Act (2000) came into effect under new

regulations in 2001.”

981

As discussed in the previous chapter, by the late 1960s and 1970s

in Nova Scotia activism by civil rights advocates had generated greater awareness of the

structural determinants of poverty and the processes leading to the feminization of

poverty. With the passing of the Family Benefits Act in 1977, a two-tier regime of social

assistance had been established that distinguished recipients who were not expected to

work, such as single mothers and the disabled, and those deemed to be employable.

982

However, Lord’s research indicates that by 2001, Nova Scotia moved from a two-tier

981

Stella Lord, The Politics and Processes of Social Assistance Gender Regime Shift in Nova Scotia:

From Voluntary ‘Rehabilitation’ to Compulsory ‘Employability’: 1980-2001 (PhD Thesis, Carleton

University, Department of Sociology, 2009) at 1.

982

Fay, supra note 779 at 160.

328

system of welfare provision which recognized social responsibility for child caring work, to

a single-tier system in which eligibility for all was premised on employability criteria.

Lord writes that the crucial factors leading to the change in Nova Scotia’s

restructuring were not just the development of workfare criteria, but also the use of

National Child Benefit clawed-back funds to offset early intervention programs for

children

983

. The history of mothers’ allowances revealed the provision of these allowances

as a double-edged sword for women: providing mother-headed families with important

public support while at the same time subjecting them to surveillance and denigrating

assessments of “deservedness”. However, the Allowances were instituted in recognition of

the value of women’s child caring work, no matter how essentialist these evaluations were.

In contrast, Lord argues that the neoliberal restructuring of welfare was an example of

gender-blind policy that has had particularly devastating effects for lone mothers including

“maintaining women’s vulnerability to poverty” and loss of autonomy.

984

Feminist critics of welfare state policy have for some time noted the “privatizing

trend” of the neoliberal reorganization of the welfare state and the effect that this

privatization has had on women and particularly, low income women and lone mothers.

985

The scaling back of state responsibility for persons in poverty that began in the 1970s and

80s, they argue, is just a part of the overall processes of neoliberal restructuring that have

had a profound effect on the social, political and economic position of women in poverty.

Workfare for single mothers marks a new understanding of motherhood in welfare

983

Lord, supra note 981 at 351.

984

Ibid at 396.

985

See, for example, Baker and Tippin, supra note 973; Isabella Bakker, Rethinking Restructuring

(Toronto: University of Toronto Press, 1996); Bashevkin, supra note 974; Ann Marie Smith, supra

note 50.

329

discourse.

986

Once children were in school, mothers could return to the workforce. If single

mothers experience difficulty in handling the duties of raising children and entering the

workforce, this is constructed as a matter of personal failing, not the result of socio-

economic inequality. While mothers’ allowances were provided in recognition of the

importance of keeping families together and of the negative effects of institutionalization,

today, welfare eligibility is tied to a mother displaying her absolute inability to support

herself by private means. Today, welfare eligibility is tied to a mother’s willingness to find

any other means of support other than social assistance,

987

including support from a

986

Martha Albertson Fineman, “Images of Mothers in Poverty Discourse” in MA Fineman and I

Karpin eds, Mothers in Law: Feminist Theory and the Legal Regulation of Motherhood at 208.

987

Employment Supports and Income Assistance Regulations, NS Reg 25/2001 (as am), s 12:

An applicant or recipient is not eligible to receive assistance where there is another feasible

source of income or applicable assets available that is sufficient to provide the applicant or

recipient with basic needs, special needs or employment services that are being applied for

or provided, as the case may be.

330

person deemed a “spouse”,

988

her acquiescence to an employability assessment

989

and

adherence to an employment plan.

990

The Changing Nature of Social Work: The Shift to Risk Assessment

Not only has this new neoliberal mindset had profound effects on the economy and

on the welfare state, in particular, but a number of scholars have written on how this

988

Ibid, ss 2, 47(1) and 23(1):

2 (ac) “spouse” means

(i) a husband or a wife of an applicant or recipient, or

(ii) a common law partner or a same-sex partner with whom an applicant or recipient

is in a marriage-like relationship that is not a legal marriage;

…

(ja) “common-law partner” means a person who is living with another person in a

relationship of interdependence functioning as an economic and domestic unit, and at least

1 of the following applies to the 2 persons in the relationship:

(i) they have lived together for at least 12 continuous months,

(ii) they are parents of a child or children by birth or adoption or share legal custody

of a child or children,

(iii) they lived together previously in a relationship of interdependence functioning

as an economic and domestic unit for at least 12 continuous months, including

any period of time the 2 persons were separated for less than 90 days, and have

resumed living together in such a relationship,

(iv) the 2 persons advise a caseworker that they are a common-law couple;

…

Chargeable income

47 (1) Chargeable income shall be deemed to include

(a) the income of the spouse of the applicant or recipient;

(b) the income received by the applicant or recipient or the spouse of an applicant or

recipient on behalf of a dependent child;

It is noteworthy that the definition of common law partner in the ESIA Regulations does not

correspond to the definition of “common-law partner” in the Maintenance and Custody Act, RSNS

1989, c 160, s 2(aa): “’common-law partner’ of an individual means another individual who has

cohabited with the individual in a conjugal relationship for a period of at least two years.

[emphasis added]

989

Ibid at s 17.

990

Ibid at s 18.

331

mindset has fundamentally transformed the way that human services such as psychiatry,

psychology, medicine and social work are performed.

991

As a result of a neoliberal

emphasis on cuts to social spending and a focus on individual responsibility, human

services have been reworked from being “caring professions” to become more streamlined

and administrative in nature. Gone are the days of expensive therapeutic interventions, of

costly institutionalizations and “round-the-clock” care; the buzz-words of the human

services under neoliberalism are now “managerialism,” “efficiency,” and “risk”.

992

opposed to dealing with the interpersonal problems in families, social work practice has

taken on a managerial function.

993

This in turn has had an effect on the way that child

protection work has been carried out with families in poverty, but it has also had effects on

the social construction of mothers in poverty. Mothers in poverty who are unable to

navigate both the demands of reproductive labour in the home and the need to maintain

the economic self-sufficiency of their family without public support are more likely to be

deemed to lack personal responsibility and to be labelled “dependent” personalities,

994

and

991

See for example, Nigel Parton, Safeguarding Childhood: Early Intervention and Surveillance

in Late Modern Society (Basingstoke: Palgrave/Macmillan, 2006); Harry Ferguson, “Protecting

Children in New Times: Child Protection and the Risk Society” (1997) 2 Child & Fam Soc Work 221;

Karen Swift and Henry Parada, “Child Welfare Reform: Protecting Children or Policing the Poor?”

(2004) 19 J of L and Soc Pol 1; Nico Trocmé et al, The Changing Face of Child Welfare

Investigations in Ontario: Ontario Incidence Studies of Reported Child Abuse and Neglect (OIS

1993/1998) (Toronto: Centre of Excellence for Child Welfare, Faculty of Social Work, University of

Toronto, 2002).

992

Pat O’Malley, “Risk and Responsibility”, Barry, Osborne, Rose, eds, Foucault and Political

Reason: Liberalism, Neoliberalism and Rationalities of Government (Chicago: University of

Chicago Press, 1996) 189 at 197.

993

Bob Lonne, Nigel Parton, Jane Thomson, and Maria Harries, Reforming Child Protection

(London: Routledge, 2009) at 51; Parton, “Changes to Practice and Knowledge in Social Work”,

supra note 907.

994

Fraser and Gordon, supra note 81.

332

“risky” mothers.

995

Much like the discourse of deservedness, for mothers and families

deemed “high risk” even the most punitive of state interventions are justified.

996

As discussed above, social policy theorists have noted over the past several decades

that a hollowing out of the welfare state has meant a substantive change in the services

provided to families in need in the child protection system. In the most recent report of

the Minister’s Advisory Committee on Children and Family Services Act and Adoption

Information Act

997

Committee members report that funding for services has consistently

been one of the key areas of concern in these reports since the implementation of the CFSA

provisions.

998

Further, the Nova Scotia Association of Social Workers has consistently

complained that child protection agencies are not receiving the funding needed to properly

implement the Act.

999

This concern over a lack of services and the effect this has had on

the nature of social work with families in the child protection system in Nova Scotia led to

the inclusion of a section in the last Minister’s Advisory Report (2008) of a section entitled

“Lack of Trust in Child Protection Services”. The Committee reported in this section that:

Parents reported their experience of being subjected to long-term adversarial

struggles with child protection workers and the system as a whole, feelings of

profound injustice, and disempowerment. Many parents reported feelings of being

controlled, manipulated and forced to comply with imposed plans. Social workers

and parents spoke of the inability to access services except through the narrow

window of apprehension or temporary custody orders, which parents experience

as cruel and threatening.

…

995

Karen Swift, “‘Risky Women’: The Role of ‘Risk’ in the Construction of the Single Mother” in D

Chunn and S Gavigan, eds, Legal Tender of Gender: Law, Welfare and the Regulation of Women’s

Poverty (Oxford: Hart Publishing, 2010).

996

Ibid at 158-159.

997

Pursuant to section 88(1) of the CFSA, the Minister must establish an advisory committee to

annually review the operation of the Act.

998

Minister’s Advisory Committee 2008, supra note 53 at 12.

999

Ibid at 15.

333

[T]he Committee heard from parents and professionals that lack of resources posed

serious obstacles to establishing trust between families and child protection

workers. Many individuals proposed compelling arguments for the use of

mediation and the involvement of extended family members in decision-making,

as a means to foster trust between agencies and families.

1000

Critical social work theorists and sociologists have noted, not only how funding for

child protection work has been scaled back, but importantly, how this shift has affected the

very nature of social work in the child protection system. In particular, the ubiquitous use

of “risk assessments” in compiling information on families, and the focusing of

intervention on the basis of these risk assessments, has led to more families coming under

the purview of the child protection systems and a more intrusive and coercive engagement

with families in poverty.

1001

The focus on risk in the human services can be traced back to a shift in psychiatry

from evaluations of “dangerousness” to evaluations of “risk”. Robert Castel in his seminal

piece, “From Dangerousness to Risk” has highlighted how the practice of psychiatry in the

United States and France has moved from responding to and treating characteristics of

“dangerousness”, to using scientific models to calculate risk. As psychiatry began to

comprehend the moral, political, and even technical problems with controlling

dangerousness in the asylum, it began to look outside the asylum and consider ways in

which “madness” could be controlled in the community at large. Thus we begin to see the

profusion of the practices of psychiatry as a science concerned with the “assessment of the

frequency of mental illness and other abnormalities” based upon the statistical

1000

Ibid at 47.

1001

Jane Waldfogel, The Future of Child Protection: How to Break the Cycle of Abuse and Neglect

(Cambridge: Harvard University Press, 1998); Swift and Callahan, supra note 906; Pivot Legal

Society, Broken Promises: Parents Speak about B.C.’s Child Welfare System (Vancouver: Pivot

Legal Society, 2008).

334

correlations.

1002

Experts in the field of psychiatry began to explain the existence of deviants

or “populations at risk”

1003

as a consequence of the objective risks inherent in the living

conditions of the disadvantaged – malnutrition, alcoholism, housing conditions, sexual

promiscuity, etc.

1004

The key for psychiatry and other public authorities was to undertake

surveillance of these people based upon the level of risk they represented and therefore to

engage in a “preventive prophylaxis”.

1005

The goal, however, is not to treat these people –

their pathological constitutions were not amenable to treatment – but to control and

regulate their behavior.

1006

Risk began to take a central role in this new, socially-focused psychiatry. Whereas

surveillance and treatment in the asylum was contained, with the patient being subject to

constant surveillance and treatment being accessible should a “dangerous” situation arise,

“social” psychiatry needed to devise mechanisms for targeting what became an infinite

amount of potential space of surveillance. Castel explains how risk became a central tool:

The presence of some, or of a certain number, of these factors of risk sets off an

automatic alert. That is to say, a specialist, a social worker for example, will be sent

to visit the family to confirm or disconfirm the real presence of danger, on the basis

on the probabilistic and abstract existence of risks. One does not start from a

conflictual situation observable in experience, rather one deduces it from a general

definition of dangers one wishes to prevent.

1007

1002

Castel, “From Dangerousness to Risk”, supra note 94 at 284.

1003

Ibid.

1004

Ibid.

1005

Ibid at 285.

1006

Rose, “Psychiatry as a Political Science”, supra note 85 at 15.

1007

Castel, “From Dangerousness to Risk”, supra note 94 at 288.

335

Therefore, psychiatry identified itself as the science of devising risk factors for

“systemic pre-detection”

1008

in the twentieth century. It is for this reason that Castel writes

that the new strategies of psychiatry “dissolve the notion of a subject or a concrete

individual, and put in its place a combinatory of factors, the factors of risk.”

1009

Shifting

the practices of human services in this way makes them amenable to the practice of

“administrative assignation” where professionals use their expertise to diagnose an

individual and then prescribe ways of managing rather than treating deviancy.

1010

Nikolas

Rose has written that the techniques of psychiatry, in utilizing risk, strive to bring future

consequences into the present and provide the individual with techniques to “self-

manage”.

1011

While the expert provides the tools, ultimately the individual is responsible

for regulating themselves.

In the “risk-frame” of advanced liberalism, the individual who acts against their

own self-interest is singled-out as risky, as a psychiatric subject which must be controlled

and managed through the “administrative function of expertise.”

1012

Rose writes that,

“Failures of management of the self, lack of skills of coping with family, with work, with

money, with housing, are now all, potentially, criteria for qualification as a psychiatric

subject.”

1013

In its bid to identify the difficulties of conduct involved in constructing

responsible, industrious citizens, psychiatric knowledge in a neoliberal age must be used

to identify those who, but for their expression of a pathological agency or autonomy, could

1008

Ibid.

1009

Ibid at 281.

1010

Ibid at 291.

1011

Rose, “Psychiatry as a Political Science”, supra note 85 at 8.

1012

Ibid at 17.

1013

Ibid at 15.

336

be integrated into the system as workers. If it can be shown that individuals are acting as

responsible agents in their failure to enter the workforce, take their meds and abstain from

substance abuse, for example, then they can be said to be acting in a risky manner and the

state can be shown to be morally justified in penalizing them.

Social work theorists have argued that the use of risk assessment tools have helped

to structure social work so that information is collected and analyzed “administratively”

and then “clients” are provided with the tools to self-manage. According to Nigel Parton

after the introduction of the NHS

1014

and Community Care Act in the UK in 1990, social

work became focused primarily on “assessment, planning, care management, negotiating,

coordinating, operating the law and procedures and using information technology”.

1015

Parton claims that social work has moved from working with relationships to collecting

information on clients and determining where risk lies. In particular, he writes that

computer technologies have allowed the logic of risk management to proliferate in child

protection work, reproducing this streamlined approach to managing clients in its ability

to identify and calculate risk using computer technologies.

1016

He writes that,

Increasingly, it seems that the key focus of activity of social work and social care

agencies is concerned with the gathering, sharing and monitoring of information

about the individuals with whom they come into direct and indirect contact,

together with accounting for their own decisions and interventions, and those of

the other professionals and agencies with whom they work.

1017

Social work theorists have pointed to a similar trend occurring in child protection

practice in Canada. In particular, they point to the ubiquitous use of risk assessment to

guide social work knowledge and action within the family as particularly problematic. As

1014

England’s National Health Service.

1015

Parton, “Changes in the Form of Knowledge in Social Work”, supra note 907 at 259.

1016

Ibid.

1017

Ibid at 254.

337

services for child protection work are scaled back, the role of the child protection worker

is changing. The front line worker has little discretion and often no longer has much

contact with the family involved in proceedings.

1018

The worker serves more in an

administrative capacity and relies upon the work of experts to assist in making decisions

regarding intervention and child placement. Risk assessment tools assist the worker to

categorize the family according to whether their level of risk, and interventions are

targeted accordingly. The risk assessment obviates the need for the front line worker to

have much interpersonal knowledge of the family, or indeed to have much personal contact

with the family under investigation. Furthermore, because assessments are predicated on

objective and standardized criteria, worker decisions are more transparent, making them

more accountable to managers and others.

1019

The move towards a risk assessment focus in child welfare in Canada is most

apparent in the 1970s and 80s with the discovery of child sexual abuse and the resultant

rise of sexual abuse complaints.

1020

Perhaps the most obvious articulations of an

intentional move towards a risk assessment focus in child protection law and

jurisprudence can be found in British Columbia’s Gove Inquiry Report (1995)

1021

and the

Report of the Panel of Experts on Child Protection compiled by the Minister of

Community and Social Services (the “Hatton Report”) in Ontario (2000)

1022

. In these two

reports, compiled as a result of concerns with child deaths in the child protection systems,

1018

Swift and Callahan, At Risk, supra note 906 at 97.

1019

Ibid at 100.

1020

Bala, “Pendulum Swinging Back too Far?”, supra note 947 at para 28.

1021

British Columbia, The Honourable Judge Thomas J. Gove, Report of the Gove Inquiry into Child

Protection in British Columbia (Victoria, British Columbia: Queen’s Printer, 1995).

1022

Ontario, Mary Jane Hatton, Report of the Panel of Experts on Child Protection (Toronto:

Ministry of Community and Social Services, 2000).

338

calls were made for the introduction of risk assessment tools and risk management

techniques in the name of safety and greater accountability for worker decision-making.

Both reports recommended amending legislation in order to provide for increased

surveillance of parents involved with protection authorities; lowering the threshold for

Agency intervention, including lowering the threshold for what constitutes “risk”;

incorporating risk assessment tools and calculating future harms through actuarial

measures and reliance on human services expertise; and finally, increasing attention to

professional accountability, consistency and focus on liability.

Social work theorists Karen Swift and Marilyn Callahan note that, “projecting the

risks of a child being harmed at some point in the future has always been a feature of child

protection work.”

1023

However, what is noteworthy in the use of risk assessment in child

protection work is that “it is only recently that attempts to categorize parents or caregivers

at various levels of risk for the purposes of determining intervention have been

systematically and scientifically pursued.”

1024

Furthermore, risk assessment criteria set out

whether parents are “high risk” or “low risk” based upon a number of criteria. A family’s

identification as “high risk,” will dictate the type of intervention:

Risk assessment works to separate those who ‘ought to be’ independent from those

deemed to be in need of monitoring. It creates gradations of ‘risk classes’ and

justifies the application of ‘appropriate’ amounts of legally sanctioned surveillance

to those groups. In child welfare, groups scored as less risky are engaged in risk

reduction, which is aimed at a goal of ‘independence’. Those scored as most risky

are viewed as potential child killers. They are ‘one step away from an inquest’

(Worker), and are treated accordingly. In this circumstance, intensified legal action

appears reasonable, even though many of the actions taken occur on the basis of

what might happen, and not what has happened.

1025

1023

Swift and Callahan, At Risk, supra note 906 at 118.

1024

Ibid at 119.

1025

Swift “Risky Women”, supra note 84 at 159.

339

Addressing risk in terms of “safety” means that interventions are not necessarily

focused on family preservation and working with the interpersonal relationships in the

home. Counter to Wald’s recommendations, the intervention with the high risk family who

may potentially face the most of coercive of interventions – removal of the child from the

home – will not necessarily receive material supports such as housing or income

maintenance. Rather, families, and particularly, mothers, labelled high risk:

[J]oin other high-risk groups ranging from mental patients to terrorists which

society is encouraged to control; they are one of many groups now legally justifying

reduced privacy and increased intrusion by authorities into personal life; they,

along with others, act as powerful examples of the high cost of seeming to depart

from social norms.

1026

Over the past several years, in Nova Scotia, while there has been no new core

funding provided for the Department of Community Services,

1027

some indicate that there

has been a sharp increase in referrals, investigations and cases of substantiated

maltreatment. In 2012-2013 there were 9035 referrals, 6601 investigations and 1249

substantiated cases of maltreatment.

1028

In 2014-2015, however, these numbers rose

sharply to 14,045 referrals, 9530 investigations and 3431 substantiated cases of

maltreatment.

1029

In 2014-2015 1200 supervision orders were issued and 114 children were

brought into care that year. Numbers from the Department indicate that only 5.6% of court

proceedings result in permanent care and custody orders which see the permanent

1026

Ibid at 158.

1027

See Provincial Budgets for 2012-2013 to 2014-2015, online: Department of Finance

<http://www.novascotia.ca/finance/en/home/budget/budgetdocuments/default.aspx>. Two

million dollars has been announced by the Honourable Joanne Bernard for family resource centers.

Nova Scotia, House of Assembly, Hansard, 62nd Ass, 2nd Sess (7 May 2015) at 5148 (Hon J Bernard).

1028

Nova Scotia, House of Assembly, Hansard, 62nd Ass, 2nd Sess (7 May 2015) at 5148 (Larry

Harrison).

1029

Ibid.

340

removal of the child from the home.

1030

This means that the majority of cases in Nova

Scotia see families placed under supervision orders. As will be discussed in greater detail

below, research conducted in Nova Scotia has shown that the most frequent services

provided to these parents at removal are supervision services, parenting education courses

and capacity assessments.

1031

Therefore, while risk assessments structure when the agency

will intervene in the family and how, the intervention itself is largely one of surveillance

and monitoring of parental behavior in the name of child safety.

Swift and Callahan also argue for a critical appraisal of the use of risk assessment

tools for their capacity to obscure social and economic factors. When using a risk

assessment tool in child protection work, they note that,

Child welfare services, with few exceptions, do not focus investigative efforts on

groups or communities or on social and economic policies that may create unsafe

conditions for children. Risk assessment in child welfare means risks posed by and

to specific individuals; therefore, risk assessments do not address social risks. The

public apparently shares with professionals an understanding of risks to children

to be those risks posed by parents and not those posed, for instance, by poverty.

1032

The authors challenge assumptions that risks are value-free and argue that the

application of risk assessment tools have serious consequences for marginalized

families.

1033

In focusing attention on supposedly objective factors risk assessment tools

may hide structural problems such as poverty and individualize them – make them the

consequence of parental characteristics and behaviours as opposed to structural

inequality. Further, these supposedly “neutral” criteria may also be based on white,

Westernized, middle-class assumptions about what is best for children. Throughout the

history of child protection law and practice, assumptions about what is normal and

1030

Ibid per Bernard.

1031

Blackstock, When Everything Matters, supra note 909.

1032

Swift and Callahan, At Risk, supra note 906 at 149.

1033

Ibid at 107-108; 143.

341

abnormal have often enfolded value judgments based upon a white, middle class, ableist

ideal. Socio-economically marginalized families who do not fit this ideal are more likely to

be labelled abnormal or “risky”, and these families will find themselves subjected to

intrusive interventions by child protection authorities.

While risk assessment tools are used by social workers to determine whether or not

to intervene in the family, another form of risk assessment tool is often used by the courts

and the Agency to determine child placement once a finding has been made: the parenting

capacity assessment. Parenting capacity assessments are assessments done by an

unregulated group of professionals called parenting capacity assessors who may have

social work or other mental health professional backgrounds but need not be psychiatrists

or degreed social workers. Capacity assessments essentially answer for the judge where the

child is best placed: with the parents, extended family (or other guardian) or in foster care.

The increasing ubiquity of parenting capacity assessments has been called into

question by members of the social work and legal communities including Ontario Court of

Justice judge, Justice Carol Curtis. In her article, “Limits of Parenting Capacity

Assessments in Child Protection Cases”

1034

Justice Curtis warns that the parenting capacity

assessments and the assessors who draft them currently have a great amount of power and

influence over child protection proceedings in Ontario. She argues that it is important for

judges and lawyers to critically examine the assessments and conclusions drawn by the

assessors. She notes that the families involved in the child protection system are suffering

socio-economic marginalization and “they are often from a dramatically different

socioeconomic group than the judge, the lawyers, and the social workers in the case.”

1035

1034

(2009) 28 CFLQ 1.

1035

Ibid at 2.

342

In particular, Justice Curtis calls on judges to critically examine the need for the

assessment, the questions asked of the assessor and the qualifications of the assessor. She

warns of the biases and difficulties presented when marginalized people are confronted

with assessments of their parenting abilities and calls on judges to watch for these

biases.

1036

Recent work on the use to be made of parenting capacity assessments in Nova

Scotia, for example, has also stressed a contextualized view of parenting to ensure it is

“good enough” to meet the needs of the child at hand. They urge attention to

environmental context, meaning that “the assessor has considered both the risks and

supports and signs of safety that exist. For example, a parent with mental health struggles

living in poverty may never the less have the support of a family member in close proximity

along with other community supports.”

1037

Without attention to the structural contexts in

which these families find themselves, risk assessment tools can serve to perpetuate existing

disadvantage.

Therefore risk assessment tools and capacity assessments not only respond to a

social service environment which has seen funding for services and personnel scaled back,

as well as an insistence on securing the safety of children and worker accountability, but

the category of risk serves to establish causation for poverty in parental failure to self-

manage. Furthermore, when we consider that the welfare discourse of neoliberalism

constructs parents in poverty as presumptively lacking in a sense of “personal

responsibility” or “insight”, it is easy to see how this lack of personal responsibility can be

interpreted as parental deficit constituting a risk to children.

In shifting a focus onto parental conduct and parental deficit, the focus on risk

absolves the state of responsibility for providing substantive material supports for the

1036

Ibid at 17.

1037

See Peter W Choate and Karen Hudson, “Parenting Capacity Assessments: When they Serve

and When they Detract in Child Protection Matters” (2014) 33 CFLQ 33 at 40.

343

family in poverty and justifies a coercive intervention with families. In the next sections I

will argue that the focus on assessing and predicting risk has changed the way that the

child protection system understands and addresses harm to children, in the process,

shifting attention away from the child and the child’s needs and onto damaging evaluations

of parental conduct.

From Objective Harms to Risk of Maltreatment

By the 1970s and 80s there was a general public awareness of the occurrence both

of battered child syndrome, and by the 1980s, of battered wife syndrome.

1038

The

conception of harms advocated by Wald and Mnookin in developing a least intrusive model

of child protection fit very much into the growing awareness of child abuse as a

consequence of family violence as a whole. Advocates of the least intrusive intervention

model of child protection, including Freud, Goldstein and Solnit in their follow up work in

1979, advocated for a focus on objective harms and substantial risk of harm in order to

ensure the necessity of state intervention into the family. The harms listed at section 22(2)

of the CFSA can be contextualized in an overall movement in the 1980s that saw greater

attention being paid to criminalizing and addressing violence in the family and the need to

respond to this violence.

The harms introduced in the CFSA were objective harms largely aimed at targeting

“child abuse”, understood largely as physical or sexual violence or emotional abuse marked

by severe psychological stress. Even the ground of “neglect” in the Act is defined in such a

way as to reflect this “child abuse” frame: the child will not be found to be a child in need

1038

See Nicholas Bala, “An Historical Perspective on Family Violence and Child Abuse: Comment

on Moloney et al, Allegations of Family Violence, 12 June 2007” (2008) 14 J of Fam Stud 271 at

273-274.

344

of protection on the basis that he or she has suffered neglect. Rather, the child must be

shown to have suffered “physical harm caused by chronic and serious neglect”.

1039

This

ground of intervention is provided for in such a way as to recognize that chronic neglect

can lead to physical harm while at the same time attempting to do away with the former

fault-oriented notion of the “neglected child” in previous child protection statutes Even the

ground of emotional harm requires that the child display certain behaviours in order to

ground a finding of harm: “severe anxiety, depression, withdrawal, or self-destructive or

aggressive behaviour”. Finally, there is a recognition at s. 22(2)(i) that the child herself

need not be harmed by violence in the family, but has to be shown to have been exposed

to family violence and be emotionally harmed by this exposure.

Across Canada, the 1980s saw reform in the areas of criminal law and family law

that promoted better criminal prosecutions of the perpetrators of violence against women

and children, and ensured greater safety for the victims of family violence.

1040

Feminist

agitations for greater recognition and prosecution of family violence saw the

criminalization of “marital rape” in 1983.

1041

Until this time, the common law provided an

immunity for a man who raped his wife – the Criminal Code definition of rape precluded

non-consensual sex with a man’s wife.

1042

Family legislation saw women able to make

1039

CFSA, s 22(2)(j).

1040

See Bala, “An Historical Perspective”, supra note 1038 at 274.

1041

Jennifer Koshan, “The Legal Treatment of Marital Rape and Women’s Equality: An Analysis of

the Canadian Experience” (September 2010) at 3, online: The Equality Effect:

http://theequalityeffect.org/pdfs/maritalrapecanadexperience.pdf.

1042

See ibid at 10: In the 1970 Criminal Code the definition of rape at section 143 provided:

143 A male person commits rape when he has sexual intercourse with a female person who

is not his wife

(a) without her consent, or

(b) with her consent if the consent

(i) is extorted by threats or fear of bodily harm,

(ii) is obtained by personating her husband, or

345

applications for exclusive possession of the matrimonial home in cases of spousal violence

and custody decisions required consideration of the effects of spousal violence.

1043

Opening

up the common law construction of the family and exposing male violence to regulation by

the courts helped to ensure the safety of women and children. Feminists sought to shift

focus from notions of choice or moralistic value judgment that saw married women as

implicitly consenting to rape or assault within the marriage or the casting of victims of rape

as morally blameworthy for their victimization. Feminists argued that this focus on the

moral regulation of women as opposed to the criminal conduct of men served to reproduce

patriarchy in the family and in society at large.

1044

Indeed, studies today continue to reveal that violence in the family is largely

gendered – the most recent statistical profile of family violence compiled by Statistics

Canada reveals that “In 2010, 7 in 10 (70%) of victims of police-reported family violence

were girls or women.”

1045

Furthermore, the statistical profile reveals that the movement to

criminalize family violence has been largely a successful one in terms of the rate of charges

being laid:

According to police-reported data, intimate partner violence was more likely than

non-intimate partner violence to result in charges being laid or recommended

(68% versus 38%). Charges were also more common when the victim of intimate

partner violence was a woman (71%) than a man (57%).

1046

(iii) is obtained by false and fraudulent representations as to the nature and quality

of the act.

1043

See Bala, “An Historical Perspective”, supra note 1038 at 274.

1044

Koshan, supra note 1041 at 14.

1045

Statistics Canada, Family Violence in Canada: A Statistical Profile (Ottawa: Minister of

Industry, 2011) at 13.

1046

Statistics Canada, Highlights of Family Violence in Canada: A Statistical Profile (Ottawa:

Minister of Industry, 2011) at 1.

346

What exactly constitutes “family violence” is significant as there is no accepted definition

of the term. Statistics Canada’s profile of family violence indicates that the definition of

family violence upon which the statistics are based “can encompass physical, sexual,

verbal, emotional, and financial victimization, or neglect. Within this publication, analysis

of violence within the family is primarily based on statistical data that are consistent with

Criminal Code definitions, unless otherwise stated.”

1047

The working definition of family

violence, then, is very much a criminal notion of family violence. The Statistics Canada

report indicates that while there is no separate family violence offence in the Criminal

Code, “family members can be charged with the appropriate criminal offence, such as

homicide, assault, sexual assault, or criminal harassment.”

1048

The fact of the offence

occurring in the family is an aggravating factor. The criminalized nature of family violence

as contained in the profile is also evident in terms of the source of data used to compile the

profile. The two main sources of data for the statistical profile comes from both a survey

of police reports, as well as self-report from the General Social Survey on Victimization

(the “GSS”).

1049

The GSS is a voluntary household survey and so it may not expose

unreported incidents of family violence.

In 2001, the Nova Scotia legislature adopted the Domestic Violence Intervention

Act (the “DVIA”).

1050

The Act is aimed at providing for emergency protection orders for

victims of domestic violence. Emergency protection orders may include time-limited

1047

Family Violence in Canada, supra note 1045 at 9.

1048

Ibid at 10. It is also important to point out that the Criminal Code of Canada contains offenses

that include abandonment and neglect; offenses which are often pursued under the Children and

Family Services Act: see Criminal Code, RSC 1985, c C-46, ss 215, 218, 219-221.

1049

Ibid at 71.

1050

SNS 2001, c 29 [hereinafter, DVIA].

347

orders for: exclusive possession of the victim’s residence; removal of the respondent from

the residence; restraints on communication, movement, or dealing with property; and

temporary possession orders for certain specified personal property such as cars, bank

cards, health cards or insurance, etc.

1051

Important for our purposes here is the definition

of domestic violence contained in the Act:

5 (1) For the purpose of this Act, domestic violence has occurred when any of the

following acts or omissions has been committed against a victim:

(a) an assault that consists of the intentional application of force that causes

the victim to fear for his or her safety, but does not include any act

committed in self-defence;

(b) an act or omission or threatened act or omission that causes a

reasonable fear of bodily harm or damage to property;

(d) sexual assault, sexual exploitation or sexual molestation, or the threat

of sexual assault, sexual exploitation or sexual molestation;

(e) a series of acts that collectively causes the victim to fear for his or her

safety, including following, contacting, communicating with, observing or

recording any person.

(2) Domestic violence may be found to have occurred for the purpose of this Act

whether or not, in respect of any act or omission described in subsection (1), a

charge has been laid or dismissed or withdrawn or a conviction has been or could

be obtained.

The definition of domestic violence, then, is very much “criminal” in nature. Domestic

violence is defined in terms of acts: assault, threats, confinement, sexual assault or threats,

and harassment.

It is also important to note, however, that since the late-1960s, battered child

syndrome and later in the 1980s, battered wife syndrome,

1052

were increasingly viewed as

1051

DVIA, s 8(1).

1052

See Nicholas Bala, “An Historical Perspective on Family Violence and Child Abuse: Comment

on Moloney et al, Allegations of Family Violence, 12 June 2007” (2008) 14 J of Fam Stud 271 at

273-274; for example, the following article sets out the physician’s role in detecting battered wife

syndrome, see Richard W Swanson, “Battered Wife Syndrome” (March 15, 1984) 130 Can Med

Assoc J 709 at 710-11.

The physician's primary role is to identify the syndrome. This can usually be done only with

straightforward, nonthreatening open-ended questions to the patient; for example, "In

348

medicalized conditions. The “discovery” of battered child syndrome is generally thought

to have occurred with the publication of C. Henry Kempe et al’s, “The Battered-Child

Syndrome” in the Journal of the American Medical Association in July 1962.

1053

In their

article, Kempe et al define battered-child syndrome as:

[A] clinical condition in young children who have received serious physical abuse,

generally from a parent or foster parent. The condition has also been described as

‘unrecognized trauma’ by radiologists, orthopedists, pediatricians and social

service workers. It is a significant cause of childhood disability and death.

Unfortunately, it is frequently not recognized, or, if diagnosed, is inadequately

handled by the physician because of hesitation to bring the case to the attention of

the proper authorities.

1054

Kempe et al reported a high incidence of battered child syndrome: among 71

hospitals, 302 cases were reported to have occurred. They reported that “on a single day,

in November 1961, the Pediatric Service of the Colorado General Hospital was caring for 4

infants suffering from the parent-inflicted battered-child syndrome.”

1055

The article

indicates that of these four children, three died. Kempe et al explain the reason for the

failure of the medical community to correctly diagnose battered child syndrome:

Yet there is reluctance on the part of many physicians to accept the radiologic signs

as indications of repetitive trauma and possible abuse. This reluctance stems from

the emotional unwillingness of the physician to consider abuse as the cause of the

child's difficulty and also because of unfamiliarity with certain aspects of fracture

healing so that he is unsure of the significance of the lesions that are present. To

the informed physician, the bones tell a story the child is too young or too

frightened to tell.

1056

what areas do you and your spouse experience conflict?" or "How does your spouse express

anger?". The problem can often be detected by observing the nonverbal response, such as

hesitation or a lack of eye contact, as well as the verbal response. The physician should then

ask more specific questions, such as "Does your husband beat you?", "When was the last

time?", "How often?" and "In what ways?". The patient should also be questioned about

whether her children have been abused.

1053

C Henry Kempe et al, “The Battered-Child Syndrome” (1962) 181.1 JAMA 17-24.

1054

Ibid at 17.

1055

Ibid.

1056

Ibid at 18.

349

The article outlined for physicians how to evaluate and diagnose battered child

syndrome. Kempe et al advised that physicians should search for the syndrome “in any

child exhibiting evidence of possible trauma or neglect (fracture of any bone, subdural

hematoma, multiple soft tissue injuries, poor skin hygiene, or malnutrition)” or where a

doctor’s clinical findings do not seem to accord with the “historical data” supplied by the

parents.

1057

The message of the article was clear: physicians had a special knowledge and

obligation to watch for signs of a potentially ubiquitous phenomenon of child battering.

Medicalized understandings of child abuse served not only to make the existence

of abuse in the home a public concern and amenable to criminal evidentiary standards,

but it also removed the moralizing aspects of child cruelty that had attached to it in the era

of Victorian cruelty to children. Now, it was understood that any family was capable of

child abuse and not just poor families. As Alan Hunt has pointed out, drawing on the work

of Ian Hacking and others

1058

Concern with ‘cruelty to children’ emerged in the 1870s as an offshoot of the cruelty

to animals movement. Since then there has been an important shift from the focus

on ‘cruelty to children’ to ‘child abuse’. The key feature of this transition was that

‘cruelty’ had been organised around a class moralisation; it was the uncivilised

lower orders who were cruel to their children. In contrast, ‘abuse’ is stripped of

class referents; it is a generic condition of relations between parents and children

and, most often, between fathers and children.

1059

[citations omitted]

Given that child abuse is stripped of its class referents, we might expect today that

we would see all classes represented in the child protection jurisprudence and in child

protection statistics. However, as the Canadian Incidence Study statistics outlined below

reveal, lower-income families are overwhelmingly represented in the child protection

1057

Ibid.

1058

Hacking, supra note 904; Pfohl, supra note 575.

1059

Alan Hunt, Governing Morals: A Social History of Moral Regulation (Cambridge: Cambridge

University Press, 1999) at 203.

350

system. Furthermore, racialized families continue to be a focus of child protection

authorities even in the era of medicalization of child abuse. At the very least, then, we may

expect in an era where the very grounds of intervention provided for in the CFSA are

predicated on these objectively-based harms from the criminal/child abuse field that we

will see a greater focus on sexual and physical abuse of children. However, as the results

of the Canadian Incidence Study of Reported Child Abuse and Neglect (the “CIS”)

discussed below indicate that this is not the case. Emotional harm, neglect and exposure

to domestic violence between parents or others in the home dominate the child protection

arena. Furthermore, it is not the expertise of physicians and criminal justice system that is

brought to bear on understanding and remediating these forms of child abuse. Rather,

psychiatric and psychological explanations have come to almost completely dominate the

field of what is understood as child abuse in the child protection regime. As discussed

above, psychiatric evaluations of risk and risk assessment have come to dominate

evaluations of what type of parent will go on to harm their child.

The CIS is the largest survey of the incidence of reported child abuse in Canada.

1060

The first indication that the definition of child abuse contained in the CIS does not map

squarely onto the family violence literature is that the study looks at cases of

“maltreatment” rather than incidents of “abuse”. While this might seem like merely a

semantic difference, the difference between “harms” and “maltreatment” is revealed as

especially significant in light of the data collected and the overall findings of the CIS. First,

the CIS is not concerned with crime per se: the CIS collects data from child welfare

agencies only and specifically does not compile data on cases investigated only by

1060

Canadian Incidence Study of Reported Child Abuse and Neglect – 2008, supra note 910 at 7:

The CIS receives funding from the Public Health Agency of Canada and a “consortium of federal,

provincial, territorial, Aboriginal and academic stakeholders”.

351

police.

1061

The quality or preponderance of harms on which child protection authorities

have focused is also significant: the CIS found that for the year 2008, exposure to intimate

partner violence constituted 34% of cases of substantiated child maltreatment in

Canada.

1062

Furthermore, 34% were cases of neglect, 9% were cases of emotional

maltreatment, 20% were cases of physical abuse and 3% were cases of sexual abuse.

1063

In 2008, the CIS began compiling data on investigations of risk of maltreatment

whereas investigations of risk had not been compiled in the 1998 or 2003 incidence

studies. On a case study review, researchers realized that social workers were reporting

risk-only investigations of maltreatment as investigations involving incidents of alleged

mistreatment.

1064

In recognition of this fact, researchers on the 2008 CIS reworked the CIS

to take into consideration cases involving risk of maltreatment only and distinguishing

them from substantiated maltreatment cases.

1065

It is important to be clear about how risk

works in this situation. The CIS in fact distinguishes risk of harm to the child from risk of

1061

Ibid. See N Trocmé et al, CIS-2008 : Study Methodology, online: Canadian Child Welfare

Research Portal <http://cwrp.ca/infosheets/cis-2008-study-methodology>.

1062

Ibid at 30. It is also noteworthy, that in the private custody arena, recent research by Allen

Bailey indicates that the men most likely to look for sole custody of children are male batterers:

Male batterers are more likely than nonabusive men to seek custody of their children.

Because men have controlled most significant segments of societies in which they live, from

government to religion and family structures, abusive men have a significant cultural

advantage in litigating issues surrounding divorce and child custody, simply by virtue of

their maleness. The legal system grants parents rights to custody of their children that often

appear to be superior to their children's right to be safe. Abusive men, who are often

articulate, manipulative, and persuasive, often prevail over their abuse victims in custody

disputes, despite a lack of evidence that the women had parenting faults. More concerning

is that some abusive men succeed in obtaining physical custody, even when there is credible

evidence of the father's abuse of the mother and the children.

Allen Bailey, “Prioritizing Child Safety as the Prime Best-Interest Factor” (2013) 47 FLQ 35.

1063

Canadian Incidence Study of Reported Child Abuse and Neglect – 2008, ibid at 30-31.

1064

Ibid at 9.

1065

Ibid.

352

maltreatment. Risk of harm continues to be included among substantiated maltreatment

cases. Researchers provide the example of a toddler that is consistently left unsupervised

and is therefore at risk of physical harm. On the other hand, risk of maltreatment, while

included in cases of substantiated maltreatment in the 1998 and 2003 cycles, was collected

separately for the 2008 cycle.

1066

The report explains what constitutes risk of

maltreatment:

There can be confusion around the difference between risk of harm and risk of

maltreatment. A child who has been placed at risk of harm has experienced an

event that endangered her/his physical or emotional health. Placing a child at risk

of harm is considered maltreatment. For example, neglect can be substantiated for

an unsupervised toddler, regardless of whether or not harm occurs, because the

parent is placing the child at substantial risk of harm. In contrast, risk of future

maltreatment refers to situations where a specific incident of maltreatment has not

yet occurred, but circumstances, for instance parental substance abuse, indicate

that there is a significant risk that maltreatment could occur.

1067

When looking at the concepts of risk of harm, maltreatment, and now, risk of

maltreatment,

1068

we shift from a focus on actual acts in the family violence frame, to a

focus on behaviours. The concept of risk works here to open up an examination of parental

behaviour and to determine how this “risky” parental behaviour may constitute objective

risk to the child. Psychiatric knowledge as to what constitutes the normal person and their

behaviours and conversely, what constitutes the “abnormal” person and their behaviours

is brought to bear in understanding these risks of maltreatment. The calculation of risk of

maltreatment therefore requires a very particular set of professional expertise.

1066

Ibid at 15-16.

1067

Ibid.

1068

Ibid at 24. The CIS 2008 reported that 74% of all child welfare investigations were conducted

because of a concern about a maltreatment incident that may have occurred, while 26% of all

investigations were conducted because of this “risk of future maltreatment”. In those risk of future

maltreatment investigations 17% were found to involve no risk of future maltreatment, 5% were

found to have a risk of future maltreatment and in 4% the risk was “unknown”. In parsing out risk

of future maltreatment from substantiated maltreatment, the CIS reveals that while 41% of

investigations resulted in substantiated maltreatments, in reality only 36% were “substantiated”

while 5% were based upon a finding of “risk of future maltreatment”.

353

Psychiatrists and psychologists perform a very particular role in the context of discovering

and remediating child abuse and maltreatment. They indicate the likelihood of harm, the

types of persons who are likely to harm, and the types of persons who are likely to suffer

harm. In this way they are integral to predicting and understanding the consequences of

risk of abuse and maltreatment.

Not only does the CIS collect data on substantiated cases involving risk of

maltreatment, but it also collects information from children’s aid agencies as to what risk

factors may indicate those families in which there is a higher likelihood of finding cases of

substantiated maltreatment. Risk factors are compiled on primary caregivers and on

households in general. In terms of household risk factors, the 2008 CIS reports that the

single greatest risk factor for households was the receipt of social assistance, employment

insurance or other benefits, followed by one move in the last twelve months, followed by

the presence of household hazards.

1069

Where a worker receives a referral to investigate a

case of child abuse, the presence of any one of these risk factors, even before substantiating

the maltreatment itself, will indicate to the worker that this family is a “higher risk” family

and there is a greater likelihood that maltreatment has occurred.

Many of the families involved in the child protection system are lone-mother

headed families which have been shown to be amongst the poorest families in Canada in

general, and in Nova Scotia in particular.

1070

Some of these women have been victims of

1069

Canadian Incidence Study of Reported Child Abuse and Neglect – 2008, ibid at 5. The 2008

CIS found that the most frequently present risk factor for primary caregivers were: “being a victim

of domestic violence (46%), having few social supports (39%), and having mental health issues

(27%).” Ibid.

1070

For 2011, Vanier Institute for the Family researchers found that female lone parent families

comprised 21.2% of all persons with low incomes. The only other family types that were more likely

to find themselves on a low income were couples either with (75.7%) or without (23.3%) children

where there was no earner in the home. See Nathan Battams, Nora Spinks and Roger Sauvé, The

Current State of Canadian Family Finances (Ottawa: The Vanier Institute for the Family, 2014) at

Appendix B; Colin Dodds & Ronald Colman, Income Distribution in Nova Scotia (Halifax: GPI

354

family violence.

1071

Many families involved in the system are marginalized by the socio-

economic problems of racism and poverty and find themselves suffering housing, food,

medical and income insecurity. African Nova Scotian families, for example, are among the

poorest families in Nova Scotia.

1072

Furthermore, aboriginal families are not only counted

among Canada’s most marginalized families, but these families are over-represented in the

child protection system and have been since the inception of the system and the creation

of residential schools.

1073

Some families involved in the child protection system are suffering complex and

interdependent problems of mental health and poverty. While persons with mental health

issues have been shown to be among Canada’s poorest citizens, poverty itself poses many

health dangers, including mental health challenges such as depression and anxiety

1074

Single mothers, therefore, suffering from housing, food and income insecurity, are at a

greater risk of suffering poor health and mental health because of their position of

Atlantic, 2001) at 40-41, online: <http://www.gpiatlantic.org/publications/abstracts/incdist-

ab.htm>.

Single mothers are four times more likely to live in poverty than two-parent families. The

average income of single mother headed families living under the poverty line is $10,000

below Statistics Canada’s LICO poverty line. In Nova Scotia, 70% of Nova Scotian single

mothers live below the LICO line. This is 50% higher than the male rate and the widest gap

in the country.

1071

Seven in 10 victims of family violence are women. See Statistics Canada, Family Violence in

Canada: A Statistical Profile (Ottawa: Minister of Industry, 2011) at 13.

1072

Nova Scotia, Poverty Reduction Strategy (Halifax: Province of Nova Scotia, 2009) available at

<http://www.gov.ns.ca/coms/specials/poverty/documents/poverty_report_2009.pdf>.

1073

The CIS 2008 reports that “the rate of substantiated child maltreatment investigations was four

times higher in Aboriginal child investigations than non-Aboriginal child investigations (49.69 per

1,000 Aboriginal children versus 11.85 per 1,000 non- Aboriginal children).” See Canadian

Incidence Study of Reported Child Abuse and Neglect – 2008, supra note 910 at 39; Blackstock,

When Everything Matters, supra note 909.

1074

Canadian Mental Health Association, Poverty and Mental Illness (November 2007) online:

CMHA <https://ontario.cmha.ca/public_policy/poverty-and-mental-illness/>.

355

poverty.

1075

The Canadian Mental Health Association reports that “people with mental

illness often live in poverty. Conversely, poverty can be a significant risk factor for poor

physical and mental health.”

1076

CMHA reports that

[I]ndividuals with serious mental illness are frequently unable to access

community services and supports due to stigma, gaps in service and/or challenges

in system navigation. Lack of sufficient primary health care and community mental

health services, shortages of affordable housing, and inadequate income support

further alienate them from life in the community. Exclusion from these social and

economic supports results in social isolation, significantly increasing their risk of

chronic poverty.

1077

Conversely, poverty can have a devastating effect on one’s quality of life, physical and

mental health.

1078

CMHA reports that, “For persons who are poor and predisposed to

mental illness, losing stabilizing resources such as income, employment, and housing, for

an extended period of time can increase the risk factors for mental illness or relapse.”

1079

Finally, problems of poverty and mental health have been shown to have a complex

relationship with addiction. Families marginalized by social and economic problems have

been shown to suffer from addictions and persons with mental health issues have been

shown to be at greater risk for addiction problems.

1080

As Justice Carol Curtis has said of

the litigants she has seen in the child protection system in Ontario:

The parents involved in child protection cases are unlike the parents involved in

domestic family law cases. Many parents involved with the child protection system

1075

Ibid at 3. See also Dennis Raphael, Poverty and Policy in Canada: Implications for Health and

Quality of Life (Toronto: Canadian Scholars’ Press Inc., 2007).

1076

Canadian Mental Health Association, supra note 1074 at 1.

1077

Ibid at 1-2.

1078

Raphael, Poverty and Policy, supra note 1075.

1079

Canadian Mental Health Association, supra note 1074 at 3.

1080

“Tackling mental health and addictions issues is vital for the health of individuals, families, and

communities. It is estimated that at least 60 per cent of individuals diagnosed with a mental illness

also have addictions”: Registered Nurses Association of Ontario, Creating Vibrant Communities

(January 2010) at 40, online: http://rnao.ca/policy/reports/creating-vibrant-communities.

356

struggle daily with chronic poverty, family violence, employment difficulties,

intellectual limitations, and serious emotional problems. They are often from a

dramatically different socioeconomic group than the judge, the lawyers, and the

social workers in the case. They often have different values and a very different life

experience. The impact of these differences cannot be over-stated.

1081

In 2009, Dr. Cindy Blackstock published the results of her study comparing “the

incidence and characteristics of child removal and reunification amongst First Nations and

Non-Aboriginal children in Nova Scotia” between 2003 and 2005.

1082

The study included

a sample of 103 non-Aboriginal children and 107 Aboriginal children who were removed

from their homes by child and family services in these years in Nova Scotia. She found that

First Nations children were removed from parental care 3.4 to 6 times more often than

non-Aboriginal children in Nova Scotia between 2003 to 2005.

1083

Furthermore, she found

that 95% of all children (both Aboriginal and non-Aboriginal) removed from their homes

between 2003 to 2005 in Nova Scotia were from households where the total household

income level was below $25,000 a year.

1084

Only 3% of children from non-Aboriginal

homes and 1% of children from Aboriginal homes came from households with incomes

over $40,000 a year. This is quite significant as the average household income in Nova

Scotia across all industries in 2001 was $46,000/year. Blackstock further found that 97%

of all families in the study did not own their own home.

1085

In Blackstock’s findings, the reasons for removal of the child and caregiver

functioning at removal further reveal families suffering from complicated social and

economic problems. Among non-Aboriginal children the three most common primary

1081

Curtis, “Limits of Parenting Capacity Assessments”, supra note 1034 at 2.

1082

Blackstock, When Everything Matters, supra note 909 at 127.

1083

Ibid at 194.

1084

Ibid at 136.

1085

Ibid.

357

reasons for removal were caregiver incapacity related to substance misuse at 24% of cases,

followed by exposure to domestic violence at 15% of cases, following by risk of physical

abuse at 11% of cases.

1086

Among Aboriginal children, the three most common primary

reasons for removal of the child were caregiver incapacity related to substance misuse at

28% of cases, exposure to domestic violence at 16% of cases, and “other neglect” in 6% of

cases.

1087

Blackstock reports that 91% of primary caregivers were female. With respect to

primary caregiver functioning at removal, for non-Aboriginal parents, mental health

concerns were the most prominent concerns at 17%, following by being a victim of

domestic violence at 16%, and finally, alcohol abuse comprised 14% of caregiver concerns.

Similarly, for Aboriginal families, the most frequent primary caregiver concern was alcohol

abuse at 16%, followed by mental health concerns at 14%, following by being a victim of

domestic violence at 12%.

1088

The latest figures from the 2008 CIS reiterate both Curtis’s and Blackstock’s

findings, reflecting the reality that most – if not all – of the families in which cases of child

maltreatment

1089

were substantiated, suffered from one or several of these interlocking

problems of poverty and disadvantage.

1090

The 2008 CIS found that 33% of households in

which a case of substantiated child maltreatment was found received social assistance,

employment insurance or other benefits.

1091

In 20% of all cases of substantiated

1086

Ibid at 143.

1087

Ibid at 143 to 144.

1088

Ibid at 155.

1089

Child maltreatment comprises cases of harm or risk of harm similar to those grounds found at

section 22 of the CFSA: physical harm, sexual harm, emotional harm, exposure to domestic violence

and neglect.

1090

Canadian Incidence Study of Reported Child Abuse and Neglect – 2008, supra note 910.

1091

Ibid at 42.

358

maltreatment, the family had experienced one move in the last twelve months, and in 10%

of cases the family had experienced two moves in the past year.

1092

In 12% of households

the presence of at least one household hazard (ie., drugs or drug paraphernalia, unhealthy

or unsafe living conditions, or accessible weapons) was found. Furthermore, 11% of

households with a substantiated maltreatment were households in public housing

units.

1093

The picture of marginalization becomes even more complex when we look at the

risk factors involving primary caregivers, compiled by the CIS from child protection

worker interviews. The CIS indicates that 91% of primary caregivers of children for whom

maltreatment was substantiated, were women.

1094

When we take into consideration the

primary caregiver “risk factors”: “being a victim of domestic violence (46%), having few

social supports (39%), having mental health issues (27%), alcohol abuse (21%), and drug

or solvent abuse (17%)” we begin to see the type of mother that will be “red flagged” by risk

assessment tools.

1095

When one combines primary caregiver risk factors with household

risk factors we get a picture of a “high risk” family as a family marginalized by racism,

sexism, family status, domestic violence, receipt of social assistance, social isolation,

addiction, housing insecurity and mental health issues. The picture becomes even more

complex when we consider that almost one half (44%) of all families in which a case of

substantiated maltreatment was found, relied on either public housing or other public

assistance.

1092

Ibid at 42.

1093

Ibid at 43.

1094

Ibid at 39.

1095

Ibid at 41.

359

Finally, when one adds these sources of social, economic, physical and mental

deprivation together with the deprivation of safety and security experienced by a victim of

domestic violence – the number one primary caregiver risk factor at 46% - one gets a

picture of extreme vulnerability and marginalization. It is unlikely that, without supports,

a mother suffering housing, food and income insecurity will be able to remove herself to

safety away from an intimate partner in order to provide safety for her child. While in the

criminal law frame family violence is perpetrated by men against women, when we look at

this same family through the child protection system, the mother who exposes her child to

this abuse becomes the source of maltreatment or risk of maltreatment to the child.

Even though the families involved in the child protection system continue to be

families in poverty, studies have shown that material supports comprise a very small

portion of the overall budget of child and family services in Nova Scotia. For example,

Blackstock’s research revealed that material supports to parents at the time of child

removal, in the form of food bank referrals, shelter supports and low-income housing

services accounted for less than 1% of all service referrals for both Aboriginal and non-

Aboriginal families from 2003-2005.

1096

By far the most common service provide to both

Aboriginal and non-Aboriginal parents at the time of child removal was supervised visits:

14% for non-Aboriginal and 13% for Aboriginal families.

1097

The second most popular

service for non-Aboriginal parents at the time of their child’s removal from their care was

parent education courses at 11% of services provided, followed by “other family/parent

support” at 9% of services provided. Blackstock reports that capacity assessments were the

most common type of “other family/parent support” provided to parents. With respect to

Aboriginal parents at the time of child removal, the second most common support service

1096

Blackstock, When Everything Matters, supra note 909 at 159.

1097

Ibid.

360

provided was in home parenting support at 11% of overall services, followed by substance

misuse assessment services (not treatment) at 9% of overall services provided.

1098

Despite the fact that 95% of families in Blackstock’s study made incomes under

$25,000,

1099

social assistance support was provided to 2% of non-Aboriginal families, and

employment training, education services, food bank services and shelter services were so

negligible as to fail to reach 1% of overall services provided to the parent.

1100

For Aboriginal

families at the time of removal, the only difference in services was that 4% of Aboriginal

families were receiving social assistance services.

1101

Even for children, Blackstock found

that a non-Aboriginal child in care was far more likely than either aboriginal or non-

aboriginal children reunited with parents to receive services.

1102

A family attempting to make ends meet at under $25,000 a year, faced with the

difficulty of paying expenses and attempting to meet their needs of daily living, require

income and housing maintenance services in order to be able to meet an acceptable

standard of living. When compared against Statistics Canada’s Market Basket Measure

threshold for Nova Scotia, 2003-2005 (ie., $29,204 in Halifax),

1103

a yearly income of

$25,000 would not cover a family’s daily needs.

1104

Instead of housing and income

1098

Ibid.

1099

Ibid.

1100

Ibid.

1101

Ibid.

1102

Ibid.

1103

Statistics Canada, Market Basket Measure Thresholds (2011-base) for reference family of two

adults and two children, by MBM region, Table 4, online: Statistics Canada

<http://www.statcan.gc.ca/pub/75f0002m/2013002/tbl/tbl04-eng.htm>.

1104

The Market Basket Measure or MBM is a benchmark for measuring low income developed by

Human Resources Development Canada and is in widespread use in Canada. The MBM is meant to

provide more of an absolute or concrete indication of living conditions and as such the threshold

amount represents the cost of a ‘basket’ of essential goods and services. The following are the MBM

361

maintenance services, however, supervision, education and assessments are often

perceived by parents to be intrusive, extending the scope of surveillance over the family.

Further, supervision, education and assessments all require the parent to be in contact

with agency personnel or assessors who are compiling data for the agency on parental

behavior that can be relied upon during adjudication of the child protection application.

While the CFSA was meant to promote family autonomy and integrity in the best

interests of the child in the next section I will show that the jurisprudence has interpreted

the Act so as to reinforce a residual model of child protection and justify a coercive

engagement with families in poverty. By focusing on risk-based grounds of harm and

relying heavily upon parental capacity assessments and other risk-based assessment tools,

Courts are legitimizing a focus on parental deficit as the basis of risk to children. This not

only obscures the effects of socio-economic marginalization on parents and children, but

it serves to reinforce the idea that it is parents, not poverty and marginalization that are

the real source of risks to children. Rather than testing the need for state intervention this

focus on parental, and most often, maternal deficit, constructs state intervention into the

often functionally mother-headed family as presumptively beneficial to children.

Judicial Interpretation of Risk of Harm to the Child

Pursuant to the CFSA, respect for the integrity of the family requires that the

agency must prove at the protection hearing on a balance of probabilities that the child is

in need of protective services. Without proof of these grounds the judge must dismiss the

application and the agency must cease intervention in the family unless the family agrees

thresholds for Nova Scotia for a family of four, in Halifax, for the years 2003 to 2005: $27,749

(2003); $28,372 (2004); $29,204 (2005). Ibid.

362

to voluntary services.

1105

If, on the other hand, the family refuses services and the agency

maintains that there is a need to remain involved due to harm or risk of harm to the child,

the agency must bring another application as evidence accumulates. It is only once a judge

has found a child to be in need of protective services that she can move onto the disposition

hearings which use the less exacting test of “best interests of the child”. At this stage even

the most coercive of state interventions may be warranted – the child may be removed

permanently from parental care. The following excerpt from D.A. Rollie Thompson’s

annotated CFSA explains the fundamental difference between the protection and

disposition proceedings:

The finding is directed to proof of harm or risk of harm to the child, based upon

past acts and conditions, a task suitable to adjudication and application of the

conventional rules of evidence. By contrast, once a finding is made, the disposition

stage is fundamentally predictive, the issues are broader and more person-

oriented, and there are strong reasons to relax evidence rules as in private custody

cases. The formal separation of the hearings allows the Court to adopt a more

relaxed evidence regime on disposition, while avoiding dangers and potential

prejudice of such relaxed rules at the protection hearing proper.

1106

The finding stage which grounds the legitimacy of coercive state intervention into the

family is meant to test the presence of the harms or risk of harms itemized in section 22 of

the CFSA. Following Wald’s formulation, the grounds were meant to be objective, evidence

based grounds that would remove judicial bias and moralized value judgments from

determinations as to the legitimacy of state intervention.

Substantial risk of harm is defined in the Act at s. 22(1) as a, “real chance of danger

that is apparent on the evidence”. This is an exacting standard and is in line with Wald’s

requirement that objective harm to the child must be shown in order to ground the

legitimacy of state intervention. Investigation of parental conduct becomes central to a

determination of risk-focused grounds because the presence of risk in a child’s life in the

1105

(1985), 45 NSR (2d) 361 at para 20.

1106

Thompson, The Annotated Children and Family Services Act, supra note 842 at 167.

363

child protection context is so often evaluated in terms of that parental conduct. Expert

psychological evidence, for example, is often used to give courts an idea of the underlying

pathology behind parental conduct, and in this way gives the court an idea of possible risks

that may be present for the child. As Wald noted, however, prediction based upon this

psychological evidence is not always credible. Therefore, Wald suggested that where there

had been no actual physical harm to the child and the evaluation is wholly risk focused,

the standard to be applied should be that of “substantial and imminent” risk the child will

be harmed:

When the child has actually suffered injury as a result of inadequate supervision, the

proposed standard is the same as that applied in abuse cases. However, when no

injury has occurred, the proposed standard requires that the risk be substantial and

imminent. These terms should limit the dangers inherent in allowing intervention

based on prediction of harm. Of course, such terms are subject to interpretation.

They may well be expanded to include situations in which I would reject

intervention. However, the proposed language does place restraints on court actions

and informs the court and welfare workers of legislative policy. It forces an agency

bringing a neglect case to court to prove the future likelihood of specific types of

injuries. Combined with adequate procedural changes, the proposed standard

should substantially limit inappropriate intervention.

1107

However, contrary to Wald’s assertion that “parental ‘inadequacy’ in and of itself should

not be a basis for intervention, other than the offer of services available on a truly voluntary

basis,”

1108

jurisprudence in Nova Scotia has interpreted the category of substantial risk at

s. 22(1) of the Act as a ground of intervention that invites an analysis of parental

inadequacy. Take, for example, the following statement by Wilson Fam. Ct. J. in Children’s

Aid Society of Pictou County v. A.J.G.

1109

Children are at risk and in need of protection when parenting is not “good

enough” to protect them from harm. The courts have consistently stated that

1107

Wald, “State Intervention on Behalf of “Neglected”, supra note 912 at 1014.

1108

Ibid at 1022.

1109

2009 NSFC 26 [hereinafter AJG].

364

authorities do not have to wait for actual harm to occur before

intervening. Children are at risk when parents lack the basic skills to provide a

stable and secure environment. Conversely, children are not at risk if parents can

protect them from harm by providing a stable and nurturing home even though

they may fall short of optimal parenting.

1110

Even though Wald warned that determining what is “good enough” parenting is so vague

that it will invite endless intervention, risk-focused grounds of harm serve to focus

adjudication on parental behaviour as opposed to actual harm to the child.

As the CIS evidence above indicates, much substantiated maltreatment is founded

not upon actual cases of harm to the child, but upon the presence of a risk of harm to the

child. As discussed above, allegations of risk are more amenable to proof by psychiatric

and psychological evidence such as Parenting Capacity Assessments and Child Abuse

Potential Inventory tools. The result of risk-based allegations of harm and psychiatric

evidence to establish this harm is that a tremendous amount of evidence is focused on the

parent and not necessarily on the effects to the child.

Furthermore as Blackstock’s study of child protection work has shown,

supervision, parenting education and parenting capacity assessments are the most

common services provided to non-Aboriginal parents at the time of child removal. All of

these services require the parent to be in contact with agency personnel or assessors. They

require that personnel keep accounts of parental behavior during the provision of these

services. Agency staff keep detailed notes of parental behavior during supervised access

visits. Staff providing parenting education and budgeting classes keep notes of parental

attendance at these sessions. And after several meetings with parents, capacity assessors

have compiled a detailed account of parental behavior with the child, as well as accounts

of any difficulties experienced by the parent including mental health and substance abuse

issues. By the time the 90-day protection hearing has been completed and then the 180-

1110

AJG at para 54.

365

day disposition hearing, a great amount of evidence on parental conduct and behavior has

been compiled during the provision of these services.

In setting out the basis of the protection application, agents often plead a number

of risk-based grounds of apprehension. Because of the need for quick interim hearings, a

low threshold test at these hearings (ie., the 5-day and 30-day hearings) means there is not

a rigorous scrutinizing of state intervention at the outset of the protection application. This

means that parents will almost inevitably be drawn into protection proceedings that will

last at least three months until the protection hearing. In these three months, the agency

will be compiling evidence from the services provided, from medical and counselling

professionals the parent may be required to meet with, and from professionals, family and

neighbours with whom the parents and children have had contact. Mounds of information

on parental indiscretions, such as throwing parties, keeping unclean households, stories

of financial mismanagement, shift the focus of adjudication onto to parental fault and away

from the child and the child’s needs. Furthermore, as Justice Carol Curtis has pointed out,

the use of experts by the agency builds a case against the parents that they are unlikely to

be able to challenge with their own workers:

There is never a level playing field for parents when the agency hires experts, as

provincial legal aid plans generally do not fund private assessments for parents, or

at least, do not fund them at the same level or frequency as the agency. Also, even

if a full assessment were properly funded for the parents, parents cannot get

sufficient access or any access to their children to permit an expert to conduct an

assessment that includes the children.

1111

This means that unless courts are vigilant in demanding that the agency focus its evidence

of objective harm or substantial risk of harm to the child, a great amount of opportunity

exists for a close scrutiny of parental conduct and potentially unwarranted and intrusive

value judgements that presume the beneficence of state intervention.

1111

Curtis, “Limits of Parenting Capacity Assessments”, supra note 1034 at 8.

366

The following review of the case law will look at examples of how allegations of

maltreatment are substantiated in the jurisprudence in Nova Scotia. I focus mainly on

issues of neglect, emotional harm and exposure to domestic violence as these are the most

commonly cited cases of maltreatment as found by the CIS data results, and because they

are particularly reliant upon psychiatric and parenting capacity evidence as well as being

grounds of intervention which so obviously intersect with gendered, classed, raced and

ableist social relations. This is not to say that emotional harm, exposure to domestic

violence and neglect are the only grounds that serve to focus attention on parental

behaviour. I focus in particular on risk of emotional harm, exposure to domestic violence

and neglect, however, because they are often adjudicated without focusing on how these

grounds of harm actually effect the child. Combined with the propensity of the agency to

prove these grounds with psychiatric and capacity assessment evidence, these grounds in

particular evidence how a risk-focus is capable of obscuring the social relations of race,

gender, class and disability in constructing the mother as a risk to her child.

An example of how risk-based grounds can serve to focus attention on parental

deficit and away from actual harm to the child is the case of Nova Scotia (Minister of

Community Services) v. J.G.B.

1112

One of the issues under appeal in that case was that the

appellant mother alleged that the trial judge, Williams J., failed to show actual harm to the

child when he found that the children were in need of protective services pursuant to s.

22(2)(g) of the Act. Section 22(2)(g) states that a child will be found in need of protective

services where:

there is a substantial risk that the child will suffer emotional harm of the kind

described in clause (f), and the parent or guardian does not provide, or refuses or is

unavailable or unable to consent to, services or treatment to remedy or alleviate the

harm.

Clause (f) provides:

1112

[2002] NSJ No 295 [hereinafter JGB].

367

(f) the child has suffered emotional harm, demonstrated by severe anxiety,

depression, withdrawal, or self-destructive or aggressive behaviour and the child's

parent or guardian does not provide, or refuses or is unavailable or unable to consent

to, services or treatment to remedy or alleviate the harm;

The trial judge had made this finding largely on the basis of the condition of the home

and the mother’s failure to take responsibility to mitigate the poor living conditions of the

children. The evidence in the decision dealt extensively with these issues and with the

behaviour of the mother and her boyfriend. There was no information about the children

suffering from emotional or physical harm. Further, notes from the workers indicated that

“A.K.G.C. and D.B. appeared healthy and happy.”

1113

The trial judge explained his

protection finding by stating that,

This is not about financial poverty. The cleanliness and hygiene issues that have been

documented relate to a poverty of responsibility. What this case is about is an

exceptionally immature young mother, a young couple with two very young children

who have repeatedly been exposed to neglectful circumstances.”

1114

While the court noted the presence of arguing and some domestic violence in the

home, the children were not ultimately apprehended on this basis. The appellant mother

argued that the Act and the grounds of protection listed at s. 22(2) necessitated that the

“court must draw the connection between the neglect and the resulting risk of harm”

1115

and that the judge could not apprehend solely on the condition of the home. In this case,

the judge found “episodic neglect” the appellant argued, but the Agency had failed to show

that the children suffered “severe anxiety, depression, withdrawal or self-destructive or

aggressive behaviour.” She argued that “a finding of need of protection based solely on

‘neglect’ or lack of parental fitness is no longer permissible under the Act,” and that “some

1113

Ibid at para 21.

1114

Ibid at para. 25.

1115

Ibid at para. 37.

368

evidence concerning the future risks to the children’s mental health was essential to draw

the inference from neglect to”

1116

the harms listed at s. 22(2)(g).

The Court of Appeal dismissed the appeal. In particular, the Court held that the judge

had not misapprehended s. 22(2)(g) of the Act. The Court began its explanation of why it

did not accept this ground of appeal by noting that “As of August 16, 2000, the appellant

consented to a finding that the children were in need of protective services based on the

substantial risk of emotional harm as defined in the Act.”

1117

The Court then went on to

characterize the appellant’s argument as stating that, “expert evidence in this area was

needed”.

1118

The court held that:

The nature of that evidence was sufficient to enable him to draw the inference, as he

did, that there was a substantial risk of emotional harm as defined in the Act. I would

reject the notion that expert evidence was a prerequisite to make the connection

between bad parenting and the risk of emotional harm in this case.

1119

The Court reviewed the evidence that lead to the finding, including the fact that the

children were found in unacceptable living conditions; that the children were bonded with

their mother but this did not offset the risk that was presented to them by the conditions

of the home; that there was filth and inadequate nutrition in the home; that there were

unkept visits to doctors; and that there were arguments in front of the children.

1120

The

Court held that, “In the face of all the evidence of neglect, an experienced trial judge must

1116

Ibid at para 37.

1117

Ibid at para 39. In setting out first that the mother consented to the protection stage, the court

seemed to be intimating that this is proof of the existence of the grounds pleaded in the protection

affidavit even though the Court has held in BLC that this is not necessarily the case. See Nova Scotia

(Minister of Community Services) v BLC, [2007] NSJ No 164.

1118

Ibid at para 42.

1119

Ibid.

1120

Ibid at para 43.

369

be permitted to draw the obvious inference of risk of harm as defined in the Act. To require

more would require actual occurrence of harm.”

1121

Although the Court held that, “The Act does not require that bad parenting go on

until the damage is done,” what the Court failed to address was the fact that nowhere did

either level of Court satisfy the condition at s. 22(2)(f) that the children were exhibiting

depression or anxiety. And further, the Court did not address the fact that there was no

evidence that the conditions of the home would inevitably lead to such harm. The Court of

Appeal took it for granted that poor living conditions would lead to a maladjusted child

and therefore upheld the decision based on this risk. The precedent that this sets for

intervention into the homes of marginalized families is staggering. As Wald pointed out, it

means that intervention could potentially be limitless. Of course children in marginalized

families will not get the opportunities that more privileged children will get and of course

they will suffer the effects of poverty. But choosing for the child protection regime the

function of separating those children from their parents on the basis of that poverty is not

only in effect punishing marginalized families for their poverty, but as Wald suggested, it

will mean that these “happy and healthy” children who are bonded to their mother will

now be subject to the harm of being removed from their parents and put in the system. It

is difficult to see how envisioning such a role for the child protection system is being done

in the best interests of marginalized children.

The case of Children’s Aid Society of Halifax v. H.A.,

1122

provides another example

of factors that can be attributed to social and economic exclusion which are depicted in

agency evidence – and adjudicated upon by the Court – as risks posed by the parent or

guardian to the child. H.A. involved the case of a single mother arrived in Nova Scotia with

1121

Ibid.

1122

2002 NSCA 94, 29 RFL (5th) 247 [hereinafter, HA].

370

two children under a Women at Risk program run by the United Church. The children

were suffering post-traumatic stress from their experience in Somalia and had language

difficulties. Furthermore, the family was Muslim living in Sydney, with no Muslim

community. The family eventually moved to Halifax to be in the Somali community there.

The family came to the attention of the Agency, first as a result of a referral from the school,

and then as the result of a referral from the IWK. One of the children alleged that he was

sexually and physically assaulted at school. Doctors did an examination and found no

medical evidence to support the allegations but noted that the family appeared to be under

“significant emotional distress at the time.”

1123

The children attended at a new school and

again there were allegations of sexual and physical abuse. Staff at immigration settlement

services contacted the Agency about the allegations. It appears that several days later the

police were contacted by the family who again spoke of the sexual assault allegations and

the police contacted the Agency. There was what the Court referred to as an “a horrible

example of an apprehension gone wrong” on December 3rd and then the children were

hospitalized.

While at the hospital the children were evaluated and the following was provided in

the doctor’s report:

Of interest, the children, on presentation to hospital and during the entire

admission, had no abnormalities in their gait or walk. There were no physical

complaints and when they began eating, within that first day of admission, there

were no problems with digestion. Psychiatry was consulted and attempted to assess

the children. This was limited as F. declared that she and her brother would not be

talking to the physician. Our understanding of the children's emotional disturbance

is also limited by our lack of understanding of their previous life experience, and the

short time of observation. The children require long term assessment.

The overall concerns for the children is (sic) the highly suspicious nature which they

and their caretakers demonstrate, which has significantly impacted their life

functioning. The repeated allegations and unusual thought processes which the

children have repeated in hospital are outside of usual childhood experience and

comprehension. There is concern that ... these thoughts have been imposed upon

1123

Ibid at para 13.

371

them or perpetuated by their caretakers. This appears to have led to significant

emotional distress to these children, and, as mentioned, they were exhibiting

physical signs, such as refusal to walk, and walking with a wide-based gait in the past.

They are also refusing to go to school as they believe they will be beaten and raped

at every school that they attend. They are certainly hyper-vigilant and very

parentified in their behaviors. They have absolute mistrust of anyone with whom

they come in contact.

1124

[emphasis added]

Examination indicated that the children were acting in a “hypervigilant” manner,

were suspicious and scared. The doctor indicated that the thought processes of the children

were “outside of the usual childhood experience and comprehension”. While this

hypervigilance and suspicion might be outside the usual childhood experience of children

born and raised in Nova Scotia, this might not be the case for children who have come as

refugees to a foreign place from a war-torn country. At no point does it appear that the

children or the caregiver were assessed by a doctor specializing in the health of refugee

persons or specialized in PTSD in children from war torn countries. The psychiatrist who

did diagnose the children considered that there were several diagnostic possibilities,

recognizing in several respects that their status as refugees might be impacting on their

mental health:

Several diagnostic possibilities need however to be considered. It may be that the

children suffer from an imposed disorder (Shared Psychotic Disorder - 297.3), a

disorder where individuals in very close relationship to an individual with a

delusional disorder share that disorder and have delusions similar in content. In

such cases, the disorder remits over time if the individual is removed from the

influence of the primarily affected individual.

Another possibility is that F. and A.'s mother and aunt have reacted to the children's

reporting of events in school and elsewhere, interpreting what has been said in a

particular way. It is possible that prior experiences may lead them to accept

possibilities that others might find highly improbable. One wonders if the children

were extremely uncomfortable in school perhaps because of anxiety over their

academic skills in relation to their classmates or because of separation issues.

Finally, the possibility that the children have been persistently abused in a serial

fashion requires to be investigated no matter how improbable this may seem to

be.

1125

1124

Ibid at para 23.

1125

Ibid at para 24.

372

The Agency argued that the children were in need of protection on the basis of

sections 22(2)(f), (g), and (h) – emotional harm, risk of emotional harm, and suffering of

a mental, emotional or developmental condition and the parent refuses to alleviate the

condition.

1126

Justice Gass found that the children were at risk and ordered their removal

to the Dayspring Children’s Center. In her decision she stated the following:

There does appear, however, to be evidence of substantial risk of emotional harm

and I conclude that there is a real danger apparent on the evidence of substantial risk

of emotional harm and although actual emotional harm was not pleaded, I would go

so far as to suggest that there actually has been evidenced by the manner in which

these children have escalated and behaved, and I am not considering what has

happened since the taking into care because I think what has happened since the

taking into care to some extent is attributable to the actual taking into care and not

the emotional harm that has resulted for whatever reasons, many of which are still

unknown to these children where they have been extremely anxious. They have been

very aggressive. They have taken on the aura of someone who has been injured in a

significant way. They have been isolated and removed from their society and the

normal interaction with other children and certainly I am satisfied that all of those

elements do support a finding of substantial risk of emotional harm apparent on the

face of the evidence.

As well I am satisfied under subsection [h] that the children do suffer from an

emotional condition that if not remedied can seriously impair the children's

development and the parents are unable to consent to services or treatment to

alleviate that condition. What that emotional condition is, is unknown but it is clear

from the evidence that there is an emotional condition there which if not addressed

would impair their ability to grow into happy, healthy children, young adults and

adults and certainly on the basis of the evidence, I am satisfied that the children are

in need of protective services.

1127

While it is clear from the judge’s decision that the children suffer from emotional

harm, it is unclear what caused this harm, what services were offered their caregiver to

alleviate this harm, and how the caregiver failed to protect the children from harm. In fact,

what is clear is that the actual taking into care caused harm and escalation, but the decision

is unclear as to why the children could not be protected in their guardian’s care.

1126

Ibid at para 27.

1127

Ibid at para 28.

373

While the guardian appealed on sufficiency of evidence and on the basis that the

judge did not explain why the children could not be protected in her care, the Court of

Appeal dismissed the appeal. The following are the substantive portions of the appeal

Court’s short judgment from Cromwell J.A.:

The judge had abundant evidence to support her conclusion respecting emotional

harm and risk of emotional harm. This included evidence of the children's extremely

anxious behaviour as reflected in the repeated and escalating allegations of abuse,

their taking on the aura of children injured and unwell, an aura unsupported by the

medical evidence, their reports of unsubstantiated medical conditions and their

prolonged absence from school. The evidence showed that the appellant appeared

incapable of addressing this situation in an appropriate manner and indeed

proposed to return the children to one of the schools in which the alleged abuse had

been perpetrated. The record makes it obvious, in my respectful view, that these

children are very troubled and at serious risk. The fact that the depth of the trouble

in combination with the appellant's conduct made more precise definition of the

trouble impossible up to the time of the hearing does not, in my view, take away from

the palpable risk of emotional harm evidenced in the record.

…

The appellant submits that the judge failed to consider various provisions of the Act,

particularly several clauses of its preamble, that state in various ways and in various

contexts that the integrity of the family and the use of the least intrusive means are

foundation principles of intervention under the Act.

In my respectful view, the judge did not fail to consider these principles to the

appropriate extent. She expressly referred to the preamble of the Act, noting that

children should be removed from parental care only when all other measures are

inappropriate. Moreover, the determination of whether the child is need of

protective services is primarily a factual matter focussed on the determination of

whether the grounds of intervention listed in s. 22(2) of the Act have been

established. The judge addressed herself to this inquiry and in doing so, she did not,

in my opinion, fail in her statutory duties under the Act.

1128

The judge at points refers to the difficulties of these children, but these aspects of

harm – socio, cultural and economic deprivation – are not accounted for in judicial

reasoning at either the trial or appellate level. Consequently, there is a failure to

contextualize the children’s situation and their problems and a failure to contextualize

what is required to maintain the family’s integrity and autonomy in this case. Instead, the

1128

Ibid at paras 32-36.

374

case law details how children have suffered emotional harm and how the caregiver is

unable on her own to protect the children, which on the facts is quite plainly true. What

the decision doesn’t tell us, however, is how to accommodate the emotional, social,

cultural, racial, political or economic toll that this family is and has suffered and exactly

what options are open to the caregiver to remediate this suffering. Nor does the decision

tell us what it must mean to remove the children from their guardian in this case. What we

see here is a court faced with a family suffering marginalization at the intersection of

racism, religious prejudice, mental illness and poverty, and the court attempts to fit these

aspects of inequality into justiciable concepts of harm and risk of harm.

Another example of how the interpretation of the grounds finding a “child in need

of protective services” has opened up the grounds of intervention to scrutinize parental

conduct can be seen in the case of Nova Scotia (Minister of Community Services) v.

F.M.

1129

While the reported decision involves the final disposition of the case, the judge

spends a considerable amount of time determining if the child remains in need of

protective services. The continuing need for protective services is not tied to any one

particular ground of intervention, however, it is instructive to review the factors that the

judge considered in determining that the children remained in need of protective services.

In this case there is a noticeable lack of emphasis on the effects of parental conduct on the

children. Instead, as will be shown, all considerations of whether the children remained in

need of protective services centered around their mother’s conduct.

In F.M., Milner Fam. Ct. J. began by noting that the evidence that led the children

to be apprehended consisted of evidence showing “the mother failed to adequately care

for the children, as shown by the unclean premises, the presence of younger children

1129

[2008] NSJ No 443.

375

hanging out in her apartment, the drinking of herself and friends, and her son’s extensive

rash.”

1130

The judge noted that the mother did not seem focused on the children during

supervised access and was not convinced by the mother’s explanation that she felt nervous

“because she was being watched.” He noted that she had little support from her extended

family and did not find persuasive evidence from an aunt that the mother’s circumstances

had improved.

Justice Milner noted that the mother had addiction issues with drugs and alcohol

and did not find the mother’s evidence credible that she had stopped drinking and using

drugs. Supporting his decision that the mother’s evidence was not credible, the judge

stated, “she said that the social workers, the police, and the photographic evidence had

been wrongly interpreted in suggesting that her apartment had been smeared with feces.

She insisted on cross examination that it had be chocolate, left over from Easter.”

1131

Because Milner Fam. Ct. J. did not believe this evidence he was unable to believe evidence

that she had her addictions under control. Under the heading of “Parental Capacity

Assessment”, however, and not under the “Addictions” heading, Milner noted that,

“psychological testing suggests that she does not have an alcohol abuse problem.”

1132

The trial judge went on to further examine the mother’s mental health, noting that

she was diagnosed with depression and ADHD but that she would not take her depression

medication because it made her sick. He opined that, “It is quite likely that she will

continue to minimize the importance of appropriate mental health care in the future, with

a potential risk to the children if living in her care.”

1133

He further stated, “ADHD, by its

1130

Ibid at para 38.

1131

Ibid at para 47.

1132

Ibid at para 58.

1133

Ibid at para 50.

376

nature, would also likely present complications for the mother if the children were to be

living in her care”.

1134

It is noteworthy that neither statement as to her mental health or

projections of her mental health was supported by evidence from a mental health

practitioner or other human services expert.

Justice Milner then reviewed the mother’s past criminal activity. He noted that she

was serving a sentence which included house arrest but that she had not always complied

with her sentence. He noted, “In failing to comply with her sentence, she seems to have

little insight into the seriousness of criminal activity. This is cause for concern for the

future well-being of any children in her care, especially where her criminal record includes

violence.”

1135

Finally, Milner Fam. Ct. J. reviewed the mother’s Parental Capacity

Assessment and placed considerable weight on the mother’s “Child Abuse Potential

Inventory” results. The following excerpt was reproduced from the Parental Capacity

Assessment Evaluative Summary:

The Child Abuse Potential Inventory is a screening tool used to detect physical child

abuse. [F.]’s Total Abuse Score fell well above the cut off criteria, and so suggests

that she has personal characteristics similar to known physical child abusers, and

so, evidences a high risk to physically abuse her children, especially when

stressed.

1136

While this decision is not a protection finding decision, it is a decision where the

judge has gone extensively through the mother’s issues in order to determine if the

children are still in need of protective services. After having reviewed all these areas of

concern with regard to the mother’s behaviour, the judge stated that the children would be

at substantial risk of physical harm. Nowhere, however, does the judge ever consider the

children or any evidence relating to how the children are functioning or whether there has

1134

Ibid at para 51.

1135

Ibid at para 54.

1136

Ibid at para 59.

377

been any physical harm of the children in the past, aside from a rash that was observed on

one of the children. Although he had evidence from a psychologist stating that the mother

did not have addiction issues and evidence from an aunt that the mother’s living situation

had improved, he refused to accept this evidence and instead found that the mother’s

conduct, including her lack of insight into her depression and the presence of ADHD,

posed a risk of physical harm to the children.

Not only are the grounds at section 22, especially, grounds involving risk, interpreted

so as to focus on parental conduct as opposed to the effect of the ground of harm on the

child, but once a parent has been determined to be “risky”, this finding with respect to one

child will be used to show risk to another child, even a newborn whom the parent has not

even had a chance to parent. In the case of Nova Scotia (Minister of Community Services)

v. J.F.

1137

for example, the child, M.D.M. was apprehended at birth based upon the

mother’s past parenting practices which saw a previous child of hers put in care. In

particular, the Agency alleged that the child was in need of protection based upon sections

22(2)(b), (g), (j), (ja) and (k) of the Act. In 2002, the Halifax Regional Police contacted the

Agency with a referral for J.F.’s first child, C., that included allegations that J.F. was living

out of her car at one point with a child and was now in an apartment with no electrical

power.

1138

The police indicated to the Agency that the apartment where the mother and

child were staying was “in complete disarray”, there were “deplorable living conditions”

and the child was hungry.

1139

When the agency worker attended at the apartment to

investigate, she interviewed the child who indicated that his bed was in the hall on the floor

1137

2004 NSSF 79, NSJ No 358.

1138

Ibid at para 3.

1139

Ibid.

378

and consisted of “some clothes lying on the floor with a pillow at one end.”

1140

The child,

C., also told the worker that he had eaten two sandwiches the day before consisting of

ketchup and onions and that he had eaten nothing else that day. Ultimately the parents

agreed to a finding on the basis of s. 22(2)(k) – that the child has been abandoned.

Due to the protection finding the child was taken into the temporary care of the

Agency and the mother was provided with services including both a psychological

assessment and then a psychiatric assessment and a parental capacity assessment by a

therapist with expertise in assessing parental capacity. While the psychologist and

psychiatrist did not find that the mother had a formal psychiatric disorder, the psychiatrist

found that she operated at a very immature level. In particular, he found:

What I did find was an individual who seems to have a lot of the evidence that one

would expect to see from a background of trauma and neglect. There are problems

of sleep, appetite, emotional disconnectedness, easily switching states, inability to

soothe oneself, and almost child-like belief about many things about the world.

It is my opinion that J.F. probably should be thought of as being developmentally

delayed in an emotional sense, and that she has not really grown up emotionally. She

seems to be unable to take the position for instance of her son, to assess danger

towards him, and actually seems to impose on him her own peculiar belief systems.

Part of this is being emotionally disconnected, and making judgements from

somewhat individual distinct states of mind.

1141

Meanwhile, the parental capacity assessor found that the parents “were capable of

meeting [the child’s] physical, emotional and educational needs throughout this visit”,

however, he also found that given the mother’s immaturity, she would be unable to parent

in the long term:

...In many ways J.F. is still emotionally, behaviourally and cognitively behaving like

a very young adolescent. It is as if the developmental maturity was stunted at a

young age and has never been allowed to fully develop. This does create a

significant problem as these issues are extremely difficult to treat and progress is

often years in the making. As a result, C.J.F. would presently remain at risk if he

1140

Ibid at para 5.

1141

Ibid at para 17.

379

were returned to his Mother's care, unless she was supervised on a constant basis.

J.F. is clearly capable of providing the necessary care on a short term basis, but

appears to lack the psychological maturity to provide the long-term consistency

that is required.

1142

Finally, a child and family therapist assessed the child, C., finding him to be “a very

bright and naturally creative little boy who lacks self-confidence and obviously has a great

need for addressing his personal security needs.”

1143

The parental capacity assessor was

concerned with the family therapist’s evaluation that the child lacked stability and pointed

to this instability in his evaluation of the mother’s parental capacity. In his report he

concluded: “I am very concerned that this child will continue to experience the same

degree of instability if returned to his mother at this time.”

1144

As a result of these

assessments the child remained in care until his biological father contacted the Agency and

expressed a desire to parent the child. The mother had notified numerous professionals,

however, that the father had been “extremely abusive (primarily to her)”. Regardless, the

Agency placed the child with the father and terminated their proceedings, finding this was

the least intrusive intervention. The mother’s second child, born in 2003, was

apprehended at birth based upon this history.

Here we have a single mother disadvantaged by a history of trauma and poverty, who

continued to suffer from mental health issues, and issues of poverty including housing,

food and income insecurity. A number of assessments were conducted and it was

concluded that this situation of multiple and intersection personal, social and economic

problems were the result of the mother’s immaturity and her inability to ensure stability

in the child’s life such. These problems were adjudicated upon as grounds of risk of harm

to the child and substantiated: the child was found to be in need of protection. While the

1142

Ibid at para 18.

1143

Ibid at para 19.

1144

Ibid at para 22.

380

mother had notified “numerous professionals” that she had experienced family violence as

the hands of the child’s biological father, a home study of the father was prepared and no

risk was found to the child. The judge found that the “least intrusive intervention” at this

point was to remove the child from the mother’s care and to provide the mother’s former

abusive partner with custody.

1145

Based on these circumstances the mother’s second child

was taken into care at birth on the basis of sections 22(2)(b), (e), (g), (ja) and (k).

1146

What is obfuscated in this case is the history of family violence experienced by the

mother at the hands of the child’s biological father, as well as the history of trauma that

led the psychiatrist to diagnose the mother as having experienced a history of “trauma and

neglect”. Furthermore, nowhere in the decision is there a discussion of how poverty has

contributed to this child being found to live in a situation of “instability”. Rather, the only

conclusion one can draw from the text of the decision is that the mother’s “immaturity”

1145

Ibid at para 23.

1146

At the final disposition hearing for the mother’s second child, the court found that even though

the mother had improved – getting into a more stable relationship with a man, attending all

sessions with a family skills worker and attending all supervised access visits – she would not be

able to improve sufficiently to parent the child by the terminal time lines set out in the Act. In finally

disposing of the application, Smith J held:

69 I am satisfied that J.F. is psychologically immature and that on a balance of

probabilities this has affected her ability to care for her children. J.F. has the basic skills

necessary to parent (this is evident from the notes of the individuals that supervised J.F.'s

access with M.D.M.). The issue is whether she is mature enough to parent M. on a long-

term basis including the inevitable periods in her life when she will undergo stress. J.F.

herself notes that a number of stressful events had occurred in her life around the time that

C.J.F. was found to be in such poor living conditions and was taken into care. The question

is whether she has now developed to the point that she will be able to properly care for

M.D.M. even in times of stress….

71 The opinions of the experts that J.F. has therapeutic issues which require long term

treatment, that she has not yet reached the level of psychological maturity necessary to

provide the long-term care for a child, her previous lack of commitment towards

undergoing therapy and her inability (until the last number of months) to exercise access

with M.D.M. on a committed basis all lead me to conclude that the circumstances that

supported the initial finding that M.D.M. was in need of protective services have not

changed to such an extent that it would be appropriate to return M.D.M. to his mother's

care.

381

has placed the child at risk.

It is not only risk-based grounds of harm alone, however, that can obfuscate the

effects of socio-economic marginalization on the lives of children and their families. We

see the same pattern of obfuscation in the case of Nova Scotia (Minister of Community

Services) v. A.S.

1147

a case involving exposure to domestic violence which involved two

young children under the age of three. Judge Niedermayer provided a concise summary of

the facts of the case leading to the children being found to be in need of protective services

under sections 22(2)(b), (f), (g), and (i) of the Act, including grounds of exposure to

domestic violence, emotional harm and risk of emotional harm:

5 In very summary form these are the facts: the Respondent, A.S., is a young lady

who comes from an extremely abusive family situation where both her father and

her brothers physically abused her; her brothers sexually abused her; and, there is

documentation showing a dysfunctional family unit from which she is a survivor. She

has had apparently three known relationships with males, all of whom have been

abusive, the last being the Respondent, M.W., who, it has been suggested, has been

the most physically and emotionally abusive of the three persons involved in her life.

…

7 The evidence from the office of the Department of Community Services as

collated and put together by Gail Vandermeullen indicates a history, since the birth

of the older child, of the Respondent's either inability or refusal to meaningfully deal

with relationship issues and parenting problems, both of which have apparently had

an observed detrimental effect upon the older child, R. Presumably, if it were to

continue, it would have the same effect on the younger child. To date the younger

child has not yet been specifically affected by the Respondent's circumstances.

Counsel for the mother argued at the protection hearing that the mother was no

longer living with respondent M.W. and had terminated their relationship, and as such the

children were not at risk of harm nor in need of protection. Judge Niedermayer dismissed

counsel’s argument, saying instead that the mother’s inability to comprehend her

vulnerability to resume an abusive relationship placed the children at risk:

13 It is my opinion, based upon the evidence which I have heard and that which

I have read, that the lack of comprehension by the mother as to her own

vulnerability to resume an abusive relationship, the lack of comprehension by her

1147

(1995) 144 NSR (2d) 71, 57 ACWS (3d) 454.

382

for the need of therapy and counselling for her own personal development and

parental abilities, is a key and integral factor in determining whether or not she can

adequately protect her children and remedy or alleviate the harm to which they are

exposed. The failure of A.S. to accept responsibility for her own failures and to deal

with services needed for rehabilitation is a major cause of finding these children to

be in need of protective services. Her denial of the extent of abuse which she and

the children have suffered; her sometimes expressed and sometimes implied denial

of responsibility for her own short-comings; the projection of blame on others; her

denial of appropriate knowledge of parenting; and, her failure to nurture, comfort

and protect the child are significant factors. They continue to this day. [emphasis

added]

The trial judge took notice of evidence from the psychiatrist that women who are

abused can be “numbed by the abuse… this numbing and depression, common to abused

women, may lessen their availability to their children for guidance and emotional support,

and even for the physical well-being.”

1148

Judge Niedermayer therefore found that “until

she can become an independent person who can operate with an independent mind, she

will be unable to protect these children.”

1149

Therefore, the mother, as victim of spousal abuse – evidencing what a psychiatrist

depicted as a “normal” coping mechanism to the abuse – was in fact depicted as the cause

of risk to children. The judge was unconcerned with the reality of the present situation that

the mother had removed herself from the abusive relationship and the abuser was no

longer living in the house. Instead, the Court depicted the mother as having a dependent

and pathological personality which would find her back in the arms of her abuser. The real

source of risk to the children was not the presence of an abuser and the limitations of our

justice and welfare systems to adequately address and remediate family violence, but the

mother’s status as the type of woman who was “vulnerable” to getting into abusive

relationships.

As the evidence above indicates, marginalized children are faced with a myriad of

1148

Ibid at para 14.

1149

Ibid at para 15.

383

risks which are the result of personal, social and economic marginalization. By pulling back

from scrutinizing the context of the “risks” and accepting expert evidence of risk as solely

the result of parental deficit, the jurisprudence helps to naturalize a connection between

parental deficit and risks to children and obscures the way that social and economic

marginalization both contribute to these deficits and themselves pose risks to children

from marginalized families.

In the next section I will show how, by failing to actually contextualize the “risks” to

children and to question how the services provided by the Agency – often in the form of

psychiatric and psychological services – are capable of assisting in remediating that risk,

the jurisprudence is in effect validating the effectiveness of these services to eliminate risk

to the children. Many judges simply evaluate whether or not the Agency provided

“services” to the family and whether the family was not able to remediate their problems

in the time allotted. This validation serves to legitimize the provision of services such as

agency supervision, parenting education classes and parental capacity assessments, as

capable of remedying risks to children. Without scrutinizing these services, attention is

shifted away from social and economic risks to the child and focused on parental deficit

and a lack of parental responsibility as the real source of risks to children in marginalized

families. When social and economic marginalization are adjudicated upon as risks to

children for which parents are solely responsible, even intrusive intervention into families

in poverty are presumed to be in the best interests of children. In the next section I will

explore how the treatment of services and time lines in cases deciding CFSA cases has

prevented the court from thoroughly scrutinizing the nature of state intervention into the

family.

384

Justifying Services under the Residual Model of Child Protection

Once the agency has justified intervention into the private sphere of the family by

showing at the protection stage that, on a balance of probabilities the child is in need of

protective services, the proceedings can then turn to the “disposition stage”. It is at this

stage where the judge can make child placement orders in accordance with a

determination of the best interests of the child. Pursuant to s. 42 of the Act, the disposition

orders available to the Court include: a supervision order; temporary custody orders; and

permanent care and custody orders. Further, the Court may dismiss the matter if it is

found that the child is no longer in need of protective services and it is in the best interests

of the child to do so.

1150

A permanent care and custody order is the most intrusive disposition order the Court

can make. This section will focus on the making of a permanent care and custody order

and the considerations that were included in the Act to ensure that such an order will be

made in line with the least intrusive intervention standard. Furthermore, the bulk of

reported child protection decisions in Nova Scotia are the result of permanent care and

custody hearings and therefore, they comprise an important part of child protection

jurisprudence.

The permanent care order can sever parental ties to a child indefinitely, effectively

making the state the child’s parent

1151

, and thus it engages greater scrutiny by the Court

than either the supervision or temporary care orders. The intent of the permanent care and

custody order is “to recognize and ensure that if parents are not willing or able to make

and carry out a plan to address the child’s need for stability and permanency planning the

1150

Section 42(1)(a).

1151

Section 47(1)

385

agency needs to.”

1152

The ultimate goal of many permanent care and custody orders is

permanency planning, often in the form of adoption.

1153

As the making of a permanent care

and custody order so fundamentally relinquishes decision-making over a child to the state,

the Act includes a number of provisions to ensure that this decision was being made as a

last resort and that state intrusion was justified. For example, sections 42(2), (3), and (4)

place an onus on the Court to more thoroughly question the Agency as to the need for

removal. However, as will be discussed, judicial interpretation of some of these conditions,

particularly, provision of services and placement with relatives, has served to undermine

the court’s ability to thoroughly scrutinize the need for and nature of intervention into the

family.

Pursuant to s. 42(2), “the Court shall not make an order removing the child from

the care of the parent or guardian unless the Court is satisfied that less intrusive

alternatives, including services to promote the integrity of the family pursuant to section

13,” have been tried and failed; refused; or would be inadequate to protect the child. As

part of the least intrusive intervention model, the Act as enacted in 1991 promised to be a

service-focused act. As described by Prof. Thompson in his Annotation:

Just as the [CSA] substituted the more neutral “child in need of protection” for the

former fault-oriented “neglected child”, so too the new Act demonstrates a slight

shift in emphasis, using the Alberta phrase “child in need of protective services”. A

child in these situations needs not “protection” from parents, but the child and his

or family require the provision of “protective services”, with a view to maintaining

the family intact or reuniting the family. In this sense, the very language reinforces

the very service orientation of the new act.

1154

…

Singled out for mention here are the voluntary services to promote the integrity of

the family of section 13, services which should in most cases have been offered or

1152

Kristina Reitmeier, Fundamentals of Child Protection Proceedings: Part III: The Dispositional

Stage (NJI Conference, Ottawa, Sept 2002) at 8.

1153

Ibid.

1154

Thompson, The Annotated Children and Family Services Act, supra note 842 at 39.

386

considered before reaching the disposition stage. The mandatory language of

section 13 – “the Minister and the agency shall take reasonable measures to provide

services…” – is reinforced at this point in the proceedings. Absent convincing proof

of inadequacy under clause (c), a failure to prove past efforts under clauses (a) or

(b) [of 42(2)] would mean the Court must opt in favour of a supervision order

under s. 42(1)(b), with terms and conditions to include the services identified.

1155

Integral to the new model of least intrusive intervention was the idea that services

– particularly voluntary services – would be provided to promote family autonomy. This

provision of services is consonant with the child welfare philosophy that had been

developing since the post-war years that preventive casework was necessary to keep the

marginalized family together. This preventive casework necessarily entailed the provision

of services, including hard services such as housing, income maintenance and child care

supports.

1156

Furthermore, the provision of services is integrally important for families in

poverty. The fact that a parent is in poverty and simply cannot access services does not

accord with the liberal view of family privacy. Without parents being able to choose

whether or not to protect the child, state intervention into these families appears

immediately coercive and counter to the rule of law. The provision of services is integral to

bringing state intervention in line with the liberal rule of law as it ensures that parents who

are not remediating deficits can in fact be shown to be the source of harm to their children,

justifying state intrusion into the private sphere of the family. The least intrusive

intervention philosophy requires, then, that the state provide services sufficient to alleviate

harm to children. Only when the parent chooses not to accept such services, or where

appropriate services have been provided but the parent is still unable to parent, should the

state step in coercively.

Since the enactment of the Act in 1991, however, the courts have not interpreted

the scope of sections 13 and 42(2) in a broad and liberal manner. The courts have rather

1155

Ibid at 198.

1156

See CFSA, ss 13(1)(a), (b), (h).

387

provided a narrow interpretation of the Agency’s obligations under the section and at the

same time have chosen to focus on parental responsibility to obtain services in a

consideration under s. 42(2). Furthermore, the appellate courts have undermined their

own judicial ability to scrutinize and order services in the best interests of the child. The

lack of an effective service regime is most evident when we look at cases in which social

problems such as poverty, racism and gendered oppression come into play. In so many

cases the services offered are in the nature of soft services such as counselling, budgeting

advice and therapy. Further, it is expected that these services must remedy the “problem”

within the time lines as set out at s. 45(1) of the Act. When we are dealing with a family

marginalized by poverty, racism, sexism and family status (ie., single mothers), it soon

becomes clear how ineffective these services are and therefore how formalistic the idea of

providing for family autonomy through such services.

The Interconnection of Services and Time Lines

The leading case on provision of services from the Court of Appeal is Nova Scotia

(Minister of Community Services) v. L.L.P. et al.

1157

In this case the parents argued that

the trial judge committed a reversible error in not considering that the Minister failed to

discharge its obligation to provide them with adequate services to support the family. The

Court dismissed the parents’ appeal and refused to comment on the level of deference to

be given to Agency decision-making with respect to services. What the Court did address

explicitly in L.L.P. was the scope of Ministerial provision of services:

The goal of services is not to address the parents’ deficiencies in isolation, but to

serve the children’s needs by equipping the parents to fulfill their role in order that

the family remain intact. Any service-based measure intended to preserve or

1157

2003 NSCA 1.

388

reunite the family unit, must be one which can effect acceptable change within the

limited time permitted by the Act.

1158

The Court went on to provide guidance as to the appropriate scope of the Agency’s duty to

provide services. At para. 38, the Court cited the following statements by Niedermayer

J.F.C. in Nova Scotia (Minister of Community Services) v. L.S. with approval:

As counsel for the Minister has pointed out, it is not mandatory for the Minister to

provide all of the services enumerated in Section 13 but "shall take reasonable

measures" to provide services. "Reasonable measures", in the context, means the

agency must identify, provide or refer to the services and there has to be a

reasonable probability of success in the provision of service...

1159

With the citation of these paragraphs from L.S. and the failure to strongly assert that

the agency has a duty to provide services in accordance with the “service-oriented” focus

of the Act, the Court of Appeal gave a cue to the lower Courts on the extent of the obligation

of the agency to provide services. This duty may be discharged, for example, by simply,

“giving the parent the names and locations of these ‘out of house’ services; payment for the

cost of transportation to and from the services, if such was necessary; making referrals and

setting up initial appointments where appropriate; and, advising the parent of alternatives,

when needed.”

1160

Very little was said about the provision of income maintenance services

or housing – services which so many families in need require in order to bring their living

conditions up to an acceptable standard. Furthermore, judges often cite the principle from

L.L.P. quoted above, that “Any service-based measure intended to preserve or reunite the

family unit, must be one which can effect acceptable change within the limited time

permitted by the Act.”

1161

While time lines were initially introduced into child protection

1158

Ibid at para 25.

1159

(1994), 130 NSR (2d) 193 (FamCt) [hereinafter, LS].

1160

LPP at para 38, citing LS.

1161

Ibid at para 25. See for example, Family and Children’s Services of Lunenburg County v GD,

2003 NSCA 123; Family and Children’s Services of Annapolis County v JD, 2004 NSFC 1; MS v

Children’s Aid Society of Inverness-Richmond, 2005 NSCA 78; Nova Scotia (Minister of

389

legislation to ensure that the best interests of the child were being provided for and that

state intervention in the family was limited, a failure to scrutinize the sufficiency of services

while upholding a strict adherence to these time lines has ended up depriving some

families of a meaningful chance to remediate complex and deep-seated problems and has

conversely relieved the state of the responsibility to provide services to address these

problems.

The time limits set out in the CFSA are provided in recognition of the principle, set

out in the Preamble, that: “children have a sense of time that is different from that of adults

and services provided pursuant to this Act and proceedings taken pursuant to it must

respect the child’s sense of time.” As such, the Act contains a number of time limits to

ensure that there is not undue delay in child protection proceedings as outlined above: the

5- and 30-day interim hearings, 90-day protection hearing and 180-day initial disposition

hearing. Further, the CFSA sets out terminal time limits at section 43(4) and 45(1) of the

Act which dictate when the Court’s jurisdiction over a matter terminates. Section 43(4)

provides that a supervision order must not extend beyond twelve months from the judge’s

original disposition decision making the order. With respect to temporary care and custody

orders, the total duration of all orders is twelve months for children under six years of age

and eighteen months for children six and over.

1162

The end of the terminal time limit is the

point at which a Court must make an order for permanent care and custody or dismiss the

matter.

1163

The importance of taking into consideration the child’s sense of time was affirmed

by the Supreme Court in (M.)C. at para. 44:

Community Services) v EC, 2007 NSSC 37; Children’s Aid Society of Cape Breton-Victoria v LD,

2010 NSCA 20.

1162

CFSA, s 45(1).

1163

See Children’s Aid Society of Halifax v TB, [2001] NSJ No 225.

390

The passage of time in matters of child custody and welfare over extended periods

may, unfortunately, carry a heavy burden for all concerned. This is recognized by the

Act in that a number of provisions mandate the timely resolution of cases and impose

time limits on Children's Aid Society involvement with a family. In particular, s.

70(1), earlier reproduced, provides that proceedings under the Act should be

completed within a two-year period. In the case at hand, Macdonald J. clearly turned

her mind to this concern when she stated:

In this case, the intention of the CFSA and in particular section

70 have clearly been violated. Had section 70 been adhered to,

the psychological bonding that has occurred between [S.M.] and

her foster home would not have occurred to the extent that it has.

My comments about the violation of s. 70 are not a criticism of

any of the parties; it is a comment on the lethargy of the legal

process which, unfortunately in this case, has thwarted the

intentions of the CFSA.

I share Macdonald's J.'s concerns with regard to the importance of reaching a speedy

resolution of matters affecting children. The Act requires it and common sense

dictates it. A few months in the life of a child, as compared to that of adults, may

acquire great significance. Years go by crystallizing situations that become

irreversible.

1164

Furthermore, the Act recognizes that a child’s sense of time is different depending

on their age in instituting different time limits for temporary care orders for children under

six years of age and over six years of age. Time limits must be short enough that children

do not bond too strongly with foster parents, lose their attachment to their biological

parents or remain in limbo too long; but they also must be long enough to allow families

to remediate difficulties using the services provided them by the Agency. However, because

of the inability of a static time limit to accommodate every eventuality or situation in a

protection proceeding, soon after the instituting of the Act judges began to experience

difficulties with the time limits under the Act. Several earlier cases decided under the

CFSA, however, indicated a willingness to be flexible on time limits as long as the

abrogation of such limits were in the best interest of the child.

1164

Catholic Children's Aid Society of Metropolitan Toronto v CM, [1994] SCJ No 37 at para 44.

391

For example, in the case of Family and Children’s Services of Annapolis County v.

A.M.,

1165

Levy J. commented on how “the issue of time frames under the Act has been the

cause of no end of problems for the Family Court bench and for counsel.”

1166

In the case

before him Levy Fam. Ct. J. was bound by the time limits at s. 41(1) of the Act which

provides that the Court has 90 days from the finding to hold a hearing and make a

disposition order. However, the Court required evidence from a viva voce hearing which

could only be obtained by way of transcripts. The preparation of the transcript meant that

the Court would have to adjourn and extend the matter past the time limits set out at s.

41(1) of the Act. In deciding whether or not the time limits at s. 41(1) were mandatory, Levy

Fam. Ct. J. turned his attention to the difficulties that the time limits posed for the family

Court:

That which has been put in place to serve the best interests of children has come

close to being their master. They have caused havoc with our ability to control our

dockets. They routinely require that other cases, no less important to parties or

children because they are not under this Act, to be bumped, often at the last minute.

It is not outside my experience that we have been obliged to proceed without

important reports or witnesses because the time frames apparently gave the Court

no option. One is left to wonder how much damage to the best interests of children

or to the integrity of the family is done in the name of these time frames.

1167

[emphasis added]

Judge Levy found that the time limit established by s. 41(1) of the Act, while

mandatory, could be extended in the best interests of the child. As the best interests of the

child principle is the “governing consideration of the legislation,” where there was a

1165

[1996] NSJ No 331.

1166

Ibid, at para 25.

1167

Ibid, at para 25.

392

conflict between adhering to the time limits and to the best interests of the children, the

best interests of the children must prevail.

1168

The Court of appeal subsequently adopted Levy Fam. Ct. J.’s reasoning and held that

the time limits in the Act could be extended in the best interests of the child. In the case of

Children’s Aid Society and Family Services of Colchester County v. H.W

1169

the Court of

Appeal dealt with the time limit contained at s. 41(1) of the Act, wherein the Court is

directed to hold a disposition hearing and render a decision ninety days after a child is

found to be in need of protective services. The appellant appealed on the basis that the trial

judge had lost jurisdiction over the child protection proceedings when he delivered his

decision more than six months after the main disposition hearing. The judge held that,

“the time frame had been extended because he re-opened the hearing on two occasions to

receive additional evidence and hear submissions respecting it.”

1170

The disposition

hearing had been held at the end of the 90-day time limit which left no time to hear

submissions or evidence. The parties therefore agreed to extend the time limits, however,

the question still remained whether the judge had lost jurisdiction in taking 6 months to

release a decision.

The Court of Appeal held that in this case if the judge had lost jurisdiction over the

matter, after the child had been found to be in need of protection, this would not have been

in the child’s best interests. The Court held that:

[A] proper interpretation of the time limits contained in the [Act], the object of

eliminating the excessive time delays experienced under the previous legislation can

best be attained not at the expense of the paramount consideration but by giving the

best interests of children their fullest and broadest effect.

1171

1168

Ibid, at para 48.

1169

[1996] NSJ No 511.

1170

Ibid at para 3.

1171

Ibid at para 27.

393

This means that when the time limits set out in the Act conflict with the best interests

of the child, the best interests of the child are to take precedence. The Court held that it

would “consider the time limits to be not mandatory but strongly directory to be obeyed to

the fullest extent possible consistent with the best interests of the child.”

1172

The Court

therefore held that in this case, as the judge had found that an extension of the time limits

was in the best interests of the child, he did not lose jurisdiction over the matter. While he

was in error of law in holding that s. 8 of the Family Court Act allowed him six months to

render a decision, he would not lose jurisdiction over the matter. The Court noted that

mere consent of counsel cannot extend the time limits, but it must also be found that such

an extension would be in the child’s best interests.

While these cases were some of the first to interpret how the time limits set out in

the new CFSA were to act, in appellate jurisprudence over the past decade, however, we

see a more rigid insistence on time lines, particularly as they concern the ability of a judge

to order services or to promote greater agency responsibility for the family. In the case

B.F.,

1173

for example, Chief Judge Comeau was attempting to provide as much support as

possible to an aboriginal family marginalized by poverty and disability, in order that they

would not lose their children because of their disadvantaged situation. The Court of Appeal

decision upholding the appeal of his ruling exemplifies the difficulty of applying a strict

adherence to time lines in the context of families marginalized by complex and interlocking

personal, social and economic disadvantage.

The case of B.F. involved an aboriginal family marginalized by the effects of poverty

and disability. The four children of the family were found to be in need of protection mainly

1172

Ibid at para 30.

1173

Nova Scotia (Minister of Community Services) v BF, [2003] NSJ No 405 at para 22 [hereinafter,

BF].

394

because of issues stemming from neglect including the condition of the home, hygiene and

poor stimulation. The children were found to be suffering a myriad of developmental

problems. A supervision order was made at that time under s. 40 and then affirmed again

at disposition on May 21, 2002. On May 5, 2003 at a review hearing, Chief Judge Comeau

rejected the Agency’s plan for permanent care and custody and ordered that the

supervision order continue past the time limit for supervision orders at s. 43(4) of the Act.

The order was to be in place for six months after which the Agency’s application would be

dismissed. He also ordered that a staff person employed by the Agency would assist the

family full-time to provide a safe and healthy environment for the family; provide healthy

nutritional meals; maintain proper hygiene; to jointly make decisions; and to acquire

parenting skills and techniques.

1174

The Agency appealed Chief Judge Comeau’s decision

on the basis that he erred by extending the time limit at s. 43(4) and by ordering the Agency

to provide services not approved by the Agency.

1175

In allowing the Agency’s appeal, the Court rejected the trial judge’s use of the Court’s

holding in H.W. as grounding his authority to extend the time limits. Chief Judge Comeau

held that pursuant to H.W. he could extend the time limits at s. 43(4) in the best interest

of the child. He held that, “The Court finds as a fact that the time limits as to dispositions

set out in s. 45 conflict with the best interests of the children which has been identified as

support for the family unit more particularly discussed earlier.”

1176

Chief Judge Comeau

therefore held that he was not bound by the time limits in the Act and made the order for

supervision discussed above as he felt it was in the best interests of the children from this

very marginalized family to be given the opportunity to remain in the family. A substantive

1174

Ibid at para 48.

1175

Ibid at para 46

1176

Ibid at para 52

395

provision of services such as support with health meals, hygiene and a “safe and healthy

environment” was what he determined was required to maintain the integrity of the family.

The Court of Appeal held that this was an error in legal principle; the principle that a time

line could be extended in the child’s best interests did not apply “to a time limit which

governs the contents of the order after the trial.”

1177

The Court of Appeal in B.F. first justified this decision by pointing to the mandatory

language contained at s. 43(4) of the Act, that “in no case shall a supervision order or

orders extend beyond twelve consecutive months of supervision” and holding that the

consequence of this language was that no supervision order shall extend past the limit.

1178

Even though Chief Judge Comeau ruled that the paramount consideration of the child’s

best interests necessitated an extension of the time line at s. 43(4) the Court rejected Chief

Judge Comeau’s ruling as violating the strict time lines set out in the Act.

The Court of appeal went on to explain why it rejected Chief Judge Comeau’s

interpretation of H.W. with reference to the principles behind the Act and behind the

Agency’s provision of services as laid down in L.L.P. The Court held that the words of s.

43(4) had to be understood in the context of the Act. In this case, as held in L.L.P., the

Court affirmed that the purpose of the Act and of the provision of services in the Act was

to provide parents with services to equip them to parent “within the limited time permitted

by the Act.”

1179

The Court quoted with approval the holding from L.L.P. that, “The Act does

not contemplate that the Agency shore up the family indefinitely.”

1180

The Court went on

1177

Ibid at para 58

1178

Ibid at para 60

1179

Ibid at para 65.

1180

Ibid.

396

to cite with approval the holding from L.L.P.,

1181

that, “The Act is designed to assist families

in performing their role as effective, nurturing parents. In my view, it should not be

interpreted in such a way as to require the child welfare authorities to assume the primary

parenting role in order to maintain the children in their home at all costs.”

1182

The Court

held therefore that, “From these passages it is clear that the maximum time periods to be

written in disposition orders are not “directory” items. They are important components of

the scheme of the object of the Act and the intention of the legislature as discussed in

L.L.P.”

1183

While the Court held that Chief Judge Comeau erred by failing to take into

consideration the objective of the Act, that “the Act does not contemplate that the Agency

‘shore up’ or act as a surrogate parent indefinitely,” his order for supervision was not one

for indefinite intervention. Indeed, his order extended the time limits in the best interests

of the child for a definite period of six months. He held that when the six months were up,

the Agency’s application would be dismissed and therefore Agency involvement would be

at an end. This is far from the Court of Appeal’s interpretation that Chief Judge Comeau

was ordering the Agency to shore up the family indefinitely. As directed in A.M., he made

a determination in the child’s best interests to extend the time line and he did so in a

constrained manner and not in an open-ended fashion. The time lines under the Act are

set in place to respect the child’s sense of time. As Chief Judge Comeau points out in his

decision, the children have never been separated from their parents so extending the order

1181

Citing from Children’s Aid Society of Metropolitan Toronto v TC [1995] OJ No 1634.

1182

BF at para 65.

1183

Ibid at para 66.

397

should not interfere with the child’s sense of time – an issue the Court of appeal plainly

misses in its decision.

1184

So what was the Court of Appeal really objecting to in B.F.? Chief Judge Comeau did

not want to “shore up the family indefinitely,” he only wanted to extend the supervision

order by six months in the best interests of the child. While the case relies in part on a strict

adherence to the time lines provided by the Act, in the name of adhering to the child’s

sense of time, this strict adherence to the guidelines in effect restricts the decision-making

of trial judges in favour of a deference to agency decision-making, including the provision

of services to families. In B.F., Comeau C.J. had the benefit of hearing from the parents

and the agency and he nonetheless made an order that he determined was in the best

interests of the child. The child had never been out of the home, and yet, a strict adherence

to the time lines resulted in the child being removed permanently from the home and from

the care of his parents. While time lines are meant to respect the child’s sense of time in

the abstract, a rigid adherence risks orders that are in fact counter to the best interests of

the child at hand. Furthermore, curtailing the ability of judges to scrutinize services in an

era which has witnessed the scaling back of the social welfare state fails to provide for a

rigorous testing of state intervention in the best interests of children. Instead, soft services

such as supervision, education and capacity assessments are expected to remediate

problems in the short time provided. This not only serves to relieve the state of the

responsibility to provide material supports for families in poverty much it serves to

reinforce the idea that parental deficit is responsible for the risks facing children from

marginalized families.

1184

Ibid at para 67. The court holds that Chief Judge Comeau’s comments in this regard are “a

distinction without a difference.”

398

Failure to Scrutinize the Adequacy of Services

The decision handed down by the Court of Appeal in Children’s Aid Society of

Halifax v. L.A.G.,

1185

exemplifies how the “soft” service focus of the child protection work

can fail to address issues of housing and income insecurity faced by so many families

involved in the child protection system. The result is the removal of children from a home

suffering economic deprivation, despite the existence of bonding and attachment between

mother and child. In L.A.G., the trial judge found the child to be in need of protective

services pursuant to s. 22(2)(k) as the judge held that the mother was unable to provide

the basic necessities for the child such as adequate living conditions. The judge also held

that the child was in need of protective services pursuant to ss. 22(2)(j) and s. 22(2)(ja)

[harm from neglect and risk of harm from neglect]. The principal reason for the

apprehension had been the condition of the home. The trial judge ordered the child to be

placed in the permanent care and custody of the Agency. The mother appealed the decision

on the basis that the trial judge erred in misrepresenting the services contemplated by the

Act and in ruling that the mother did not identify services that could have been provided

to her.

1186

The mother argued that “it was her impecunious state which contributed to her

inability to service her rent and utilities”

1187

which resulted in the finding that she was

unable to provide sustained care for her child. She argued that the trial judge

misapprehended this fact when he stated that “Ms. [G.] has repeatedly not paid rent or

1185

[2005] NSJ 512 [hereinafter, LAG].

1186

Ibid at para 14.

1187

Ibid at para 19.

399

power. She has effectively refused the most basic of services.”

1188

The mother argued that

the Agency never offered her these services. Further, had the mother been offered these

services, she argued that she would not have refused them. The only services the mother

was offered from the Agency included parenting courses, an assessment report, counseling

for gambling, and a family skills course.

The mother, therefore, was essentially attempting to appeal the decision on the

basis that the Agency had not fulfilled its duty to provide her appropriate services. The

Court of Appeal dismissed the mother’s appeal, holding that the judge correctly cited the

appropriate legal principles dealing with the Agency’s duty to provide services as laid down

in L.L.P. and that he had not misapprehended the evidence. It was open to the trial judge

to find that the mother was refusing to maintain a household at an acceptable level for the

child and that there were no services that would help the mother to pay rent. The trial

judge had found that the mother was unable to find the “personal discipline to pay rent,

power or maintain a household” and no service would assist her to do so.

1189

He found that

“She is connected to and uses community resources…She has had private counseling. None

of these services has impacted upon Ms. [G.] so as to enable her to create sustained

change.”

1190

Not only does providing counseling and parenting courses fail to address the poor

standard of living which is keeping children in vulnerable positions, but an insistence on

providing these services shifts the focus to parental behaviour as opposed to the effects of

the social problem of class and poverty. The mother in L.A.G. was a single mother suffering

from the effects of poverty. By providing her with counseling and parenting courses and

1188

Ibid at para 18.

1189

Ibid at para 23.

1190

Ibid at para 22.

400

then noting that she was still not paying her rent or power leads to the conclusion that it is

a personal failing of hers that is leading to her impecunious state. In this case it was the

mother’s lack of personal discipline and lack of insight into her refusal to pay rent and

power that posed a risk to the child.

Children’s Aid Society of Cape Breton-Victoria v. A.L.

1191

is a further example of

how the provision of services – totally inadequate to address ingrained social problems –

can perpetuate the idea that it is parental conduct which created the risk to the child. In

A.L. the child was found to be in need of protective services primarily because of concerns

regarding exposure to domestic violence. While the mother was originally under a

supervision order, the Agency took the children into temporary care and custody after the

mother’s boyfriend assaulted her once more. The Agency’s position was that “the mother

was repeating a pattern of engaging in personal relationships with violent men, which

created a substantial risk of physical harm for the children.”

1192

The Agency sought a

permanent care and custody order with no access to the mother. The mother’s position

was that she no longer had contact with the boyfriend that assaulted her, and that she was

making significant strides in her personal life such as attending counseling for her

addiction to prescription drugs and holding a full-time job. She asserted that some of her

difficulties came from her financial circumstances which made her rely on the boyfriend

who assaulted her.

The judge allowed the Agency’s application for permanent care and custody and

denied access to the mother. The judge held that her recent conduct in getting her life

together and in staying away from violent persons “was too little too late” as the time limits

1191

[2010] NSJ No 274.

1192

Ibid at para 29.

401

had expired.

1193

The trial judge held that the mother was a victim of domestic violence and

that “her actions throughout the proceedings have demonstrated that she puts herself in

harm’s way and is not forthcoming in reporting incidents of domestic violence in a timely

manner.”

1194

While the judge had found that there was a close bond between mother and

one of the children and that she “had the capacity to meet her children’s physical, mental

and emotional needs”, her inability to stay away from domestic violence put her children

at risk.

1195

What is so troubling about this case, beside the fact that it “blames the victim” for

her problems and thereby hides the nature of gendered power relations that give rise to

domestic violence, is that the mother had accessed all the services provided her by the

Agency to no avail. While the mother appeared to have her substance abuse under control

through attending services it appeared that there was no amount of services that would

provide her with the “insight”, or in other words, sense of responsibility, necessary to get

her to stop putting herself in situations where she would be abused. As the Agency argued

at trial:

the domestic violence risk factors which led the children to be in need of protective

services continue to exist, the services that have been implemented to alleviate the

risk have failed and the circumstances giving rise to the risk are unlikely to change

within a reasonable foreseeable time-frame based on the ages of the children.

1196

Providing the mother with counseling services while failing to recognize that the

mother was experiencing financial difficulties which lead her to be dependent on the man

that assaulted her, meant that the “soft” services provided her would be totally ineffective.

1193

Ibid at para 65.

1194

Ibid at para 65.

1195

Ibid at para 66.

1196

Ibid at para 48.

402

In providing the mother with counseling services, the causation for the problem of

domestic violence was laid squarely at her feet. The provision of counseling services helped

to perpetuate the narrative that the mother’s inability to keep away from abusive men and

her inability to take responsibility for herself and her child, were the cause of her abuse

and the risk to her child.

1197

A rigid adherence to the time limits set out in the CFSA is justified on the basis that

these limits respect the child’s sense of time. As Freud, Solnit, and Goldstein had pointed

out some four decades ago, a child’s sense of time is different than an adult’s. Setting a

time limit on state intervention into the family is in the best interests of the child as it

prevents the child from suffering uncertainty and insecurity for longer than is necessary.

Furthermore, the time limits ensure that the child a child has a chance to attach to a

“psychological parent” as quickly as possible in the case that the child has to be removed

from the home.

1198

These are general rules and presumptions which have been instituted

in recognition of an abstract concept of the child and the child’s needs in order to ensure a

universal right of the child in the child protection system to be free from undue

intervention and to safeguard the right of the child to a safe and permanent placement as

soon as possible.

However, as child welfare reformers advocated in the 1970s, a child-focused system

of child protection requires not only that an understanding of child development and the

1197

While it is beyond the scope of this paper to review the causes of domestic violence, it is sufficient

to note that domestic violence is not caused by a woman’s pathological need to be beaten. There are

dire social problems such as the feminization of poverty and oppressive gendered power relations

which give rise to situations in which women are abused in their intimate relations with men. The

provision of counseling services as opposed to financial services to help the mother alleviate her

impoverished situation and get into a stable and safe environment helped to perpetuate the fallacy

that it was the mother’s own personal choice to engage in domestic violence. This helped to justify

the removal of the child from her care, as it now appeared as if she was choosing to live in an abusive

situation rather than to be a responsible mother for her child. On the intersection of poverty, social

assistance reform and domestic violence see Mosher et al, supra note 52.

1198

Beyond the Best Interests of the Child, supra note 914.

403

institution of rules in accordance with this child development knowledge, but such a

system also requires a rigorous testing of intervention with the child. They advocated that

the protection hearing should focus on the child and investigate the effects of the ground

of intervention on the child. Otherwise, as Wald argued, the state may remove the child

from an environment in which the child is functioning adequately, even if the parents lack

the capacity to parent to agency standards. In order to ensure that a child was being

removed as an absolute last resort, Wald and Mnookin recommended the provision of

family services in the form of material supports as well as counselling services, in order to

ensure that it was not the stresses of income, housing and food insecurity which were

creating the risk to the child. They recommended the instituting of time lines on top of this

supportive system of child protection to further secure the interests of the child.

A rigid adherence to the time lines in a system that has seen the scaling back of

material supports to parents in poverty and a greater scrutiny on parental behavior as

constituting risks to children, allows coercive state intervention in a family where parents

are unable to remediate difficulties in the matter of 12 months to a year and a half

(depending on the age of the child). The injustice that this presents to families

marginalized by racism, sexism, ableism and class is staggering. Furthermore, by

curtailing judicial scrutiny of state intervention into the family, the provision of time-

limited “soft” services is legitimized as capable of adequately protecting children. In this

way, parental behavior – often in functionally mother-headed families – is legitimized as

the source of risk to children. The state is justified in failing to provide material supports

and the courts are justified in seeing risks as personal failings as opposed to the product of

disadvantage and inequality. A lack of maternal responsibility and not social and economic

disadvantage are the real source of risk to children.

404

Conclusion

Scholars of social policy have been noting for some time the scaling back of social

services and the privatization of responsibility for individuals and family. The private

sphere of the family and the marketplace are seen as the appropriate place for individuals

to seek support. Welfare eligibility has been tightened and tied to employment, and

initiatives such as the “spouse in the house” rule were instituted in order to disentitle

women for whom it was assumed were receiving (or presumed should be receiving)

support from a conjugal partner.

1199

In an era which has seen the neoliberal restructuring

of welfare and the privatization of responsibility for reproductive labour, a rigorous testing

of state intervention into the family in poverty is required in order to ensure that this

intervention is warranted, beneficial to children, and is not perpetuating existing

disadvantage. This is especially so given that the care-taking work of low-income mothers

is no longer seen as deserving of public support. Low income mothers are expected to take

responsibility for uncompensated work in the home and as well as undertaking

compensated work outside of the home. If they are not able to navigate these

responsibilities they are labelled as “dependent” and lacking in personal responsibility. In

an era of neoliberal restructuring, not only are material supports clawed for marginalized

families, but parents are constructed as presumptively undeserving of support.

In the early years of child protection law, the Prevention and Punishment of

Wrongs to Children Act emerged amidst a climate not only concerned with protecting

children, but of utilizing the sphere of the family to address the social and economic

problems of the day. Relations in propertied families were shifted so that the absence of a

male head of the family through desertion, or the absence of an economically productive

male head through intemperance, could be compensated for by the mother. Women in

1199

See discussion in, Chunn and Gavigan, “Welfare Law, Welfare Fraud,” supra note 102.

405

families in poverty were expected to maintain the family without support from the public

sphere. They were expected either to rely upon their own meager wages, or to apply for

private charity, or to negotiate informal separation agreements without the protection of

law. All the while, this activity in the private sphere was patrolled by criminal, vagrancy

laws, and a quasi-criminal system of child protection. If a woman made money by

prostitution, the criminal law would intervene. If a woman failed to keep her child off of

the streets and in school, the quasi-criminal law of cruelty to children would intervene. If

a woman applied for poor relief under the Poor Law, she would be sentenced to live in the

Poor House.

While mothers’ allowances helped to improve the material positions of some single

mothers, and maternalist and child development constructions of the value of mother-

work helped to improve their social positions, unwed mothers continued to be constructed

as presumptively abnormal, neurotic, dependent and irresponsible. For these mothers,

even the most coercive legal interventions – the permanent removal of the child from her

care and custody – was justified. It was presumed that removal of the child from her care

was in the best interests of that child.

Today feminist legal theorists point to the ways in which the lives of women in

poverty, and particularly, racialized women in poverty, are governed by coercive public

laws; by coercive immigration,

1200

criminal

1201

and welfare laws

1202

that simultaneously

construct and regulate their activity as criminal in nature. Reports from the latest Nova

1200

Sedef Arat-Koc, “Neo-Liberalism, State Restructuring and Immigration: Changes in Canadian

Policies in the 1990s” (1999) 24 J of Can Stud 31.

1201

Dianne L Martin, “Both Pitied and Scorned: Child Prostitution in an Era of Privatization” in B

Cossman and J Fudge, eds, Privatization and the Challenge to Feminism (Toronto: University of

Toronto Press, 2002) at 355.

1202

Janet Mosher, “Intimate Intrusions: Welfare Regulation and Women’s Personal Lives” in S

Gavigan and D Chunn, eds, The Legal Tender of Gender: Law, Welfare and the Regulation of

Women’s Poverty (Oxford: Hart Publishing, 2010) at 165.

406

Scotia’s Minister’s Advisory Committee on the Children and Family Services Act and

Adoption Information Act (May 2008) indicate that child protection work is likewise

experienced coercively by the families involved in the system. The 2008 report observed

that:

Reports from social workers and professionals of support services echo the

statement by J. Lafrance that “The overall paradigm in child protection agencies

seems to be moving toward increasing power and control over clients and away

from interpersonal elements necessary for the achievement of child welfare

activities which are central to agency goals.”

1203

Critical feminist socio-legal scholars have observed that the moral regulation of the activity

of families in poverty, particularly mothers on assistance, in a neoliberal era, has become

more punitive and criminalized in character.

1204

As social assistance is scaled back, so the

subjects who are constructed as the “undeserving” poor expands. While lone-mothers may

have been constructed as deserving of support in the early years of Mothers Allowance,

and eventually even some unwed mothers were seen to be deserving of support, today any

mother that applies for public support is at risk for being labelled “dependent” and as

Gordon and Fraser argue, “pathological”.

1205

In the era of cruelty to children, in which the first child protection act was

introduced, the child of unwed mothers and of families in poverty was constructed as filius

nullius – the child of no one. While the bastard child was as much a legal as a social

construction, the child of families in poverty was constructed as filius nullius through the

1203

Minister’s Advisory Committee 2008, supra note 53 at 47.

1204

Chunn and Gavigan, “Welfare Law, Welfare Fraud”, supra note 102 at 232:

This redefinition of the ‘undeserving poor’ has required a massive redeployment but,

arguably, not a reduction in the allocation of state resources to welfare. The downsizing of

social assistance payments is accompanied by a concomitant increase in state-subsidised

make-work and workfare programmes that ostensibly will (re)turn participants to the

labour force, and a dramatic increase in the state-implemented technologies and

programmes which are aimed at ferreting out and punishing the ‘undeserving’ poor.

1205

Gordon and Fraser, “A Genealogy of Dependency”, supra note 81.

407

erosion of a legalized sphere of family autonomy which eventually culminated in the

juvenile delinquents regime and the era of institutionalization. In taking absolute

responsibility for the child in poverty the juvenile delinquent regime created a bastard

child of the child in poverty. Just as bastardus nullius est filius, aut filius populi, that is

the bastard child is nobody’s son, or the son of the people; so the son of the people, is

nobody’s son.

The juvenile court did not need to test whether intrusion into the private sphere of

the family was necessary, as there was no legalized private sphere of the family in poverty.

There was no recognized legal presumption of family autonomy for these families, and

liberty rights were conceptualized and provided for individually, by the Liberty of the

Subject Act. But this lack of family autonomy for families in poverty was as much a social

as a legal construction. Recapitulation theories, the science of “feeblemindedness” and the

discourse of deservedness – provided an objective truthfulness by their use in law – served

to render moot any need to consider the capacity of these families for providing for the

best interests of their children. The fact of intervention into this incompetent family was

presumed to be in the welfare of children.

Today, families in poverty are constructed as dependent, risky and undeserving of

support. The science of risk is given legitimacy by use in law as a legitimate means of

defining, calculating and addressing risks to children. When a family is labelled risky the

beneficence of state intervention into these families is presumed and even the most

coercive interventions are justified. As the family in poverty is constructed as unable to

self-manage, lacking personal responsibility and ultimately dependent and pathological,

the threshold for testing the need for and benefit of state intervention is lowered.

But this social and legal regulation of parents in poverty has not only served to

disempower parents and subject them to repressive outside interventions. Since 2012, the

Truth and Reconciliation Commission of Canada has generated awareness and issued Calls

408

to Action, regarding the abuses that were committed against First Nations children and

the legacy of dislocation and disconnection that continues from this era.

1206

The

construction of families from which these children came as dependent and, in the colonial

discourse of the day, “uncivilized”, did not serve the interests of these children, either. The

consequent “civilizing” techniques and discourses and the rendering of these children as

productive, able, and independent citizens, did not serve their interests, but instead,

served the interests of capital, of patriarchy, of colonialism and of racial segregation and

subordination.

For white children the lessons of institutionalization were learned and responded

to half a century ago. By the 1950s and 60s, child development experts, social assistance

professionals, as well as child welfare professionals all recognized the dangers of

institutionalization and consequently espoused the value of mother-work. Child

development experts espoused the value of proper maternal attachment, social assistance

professionals espoused the importance of Mothers Allowance, child welfare professionals

espoused the value of preventative social work and legal professionals espoused the value

of parental rights. The lessons of institutionalization had taught that there had to be a

healthy skepticism of state care. A legal concept of family autonomy for marginalized

families provided the necessary critique of the presumed beneficence of state care and

served to erect a threshold test of the need for state intervention into even unwed-mother-

headed families. But, as I argued in Chapter 4, the concept of natural parental rights and

in particular, the concept of the child in need of protective services still contained vague

notions of fitness which served to subject certain marginalized families to damaging value

judgments.

1206

Truth and Reconciliation Commission of Canada, Calls to Action (Winnipeg: Truth and

Reconciliation Commission of Canada, 2012), online: Truth and Reconciliation Commission of

Canada

<http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Calls_to_Action_English2.pdf>.

409

In the 1970s both child development and child welfare law reformers argued for

the introduction of a “least detrimental alternative” model of child welfare. Both argued

for the adoption of substantive notions of family autonomy in child protection law in the

interests of the child. In particular, they argued for greater focus on the child and objective

harms or substantial risk of harm to the child and the elimination of damaging value

judgments which served to justify state intervention into marginalized families based not

upon a child-centered ethic, but racist, gendered, ableist and classed values. They argued

for the provision of material services such as housing and income maintenance in order to

ensure that the family’s position of poverty was not itself the cause of harm to the child. A

child protection system predicated on the health and well-being of children, they argued,

required support for family autonomy to prevent undue intrusions into the marginalized

family which would itself be traumatic for children. A child-centered concept of child

protection would actually scrutinize the beneficence of state care and weigh this against

the care of the family where the child may be functioning adequately. The interests of the

child, they argued, relied upon challenging decisions which were based not upon their own

particular, contextualized best interests, but upon decisions that served political interests.

Rather than a child-centered system of child protection and a substantive and

contextualized notion of family autonomy, however, a neoliberal restructuring of welfare

and the child protection system has seen a redrawing of the private sphere of the family in

poverty. Rather than material supports and a valuing of care work within families in

poverty, neoliberal restructuring has seen the devaluing of care work and a greater

insistence on self-sufficiency and independence for families in poverty. Furthermore, as

feminist theorists have shown, social policy has emphasized “less eligibility” for previously

“deserving” groups,

1207

as well as more punitive measures for the undeserving. Child

1207

Joan Gilmour, “Retrenchment not Reform: Using Law and Policy to Restrict the Entitlement of

Women with Disabilities to Social Assistance” in S Gavigan and D Chunn, The Legal Tender of

Gender, supra note 41 at 189.

410

welfare work itself supports these categories of deservedness with the discourse of risk and

targets high risk families with surveillance, a denial of basic rights to privacy, and

potentially, the removal of the child from their care.

Rather than challenging these negative constructions of families and rigorously

testing the need for coercive interventions, contemporary child protection jurisprudence

overall has served to legitimize the construction of socio-economically marginalized

families as risky and has justified a coercive intervention. Child protection jurisprudence

tends to reinforce the connection between family autonomy and liberal values of self-

sufficiency and independence by failing to challenge the legitimacy of risk assessment tools

and by failing to demand that in the process of proving risk to the child, greater focus is

placed on the child him or herself. Furthermore, the jurisprudence actively constructs

marginalized families as risks to their children by adjudicating matters of personal, social

and economic disadvantage as risks to children caused by parental conduct and lack of

responsibility. Rather than testing the need for state intervention, state intervention is

justified as presumptively necessary when socio-economically marginalized families are

involved. Furthermore, as these risks to children are the result of parental conduct,

services which are aimed at changing parental conduct such as supervision, parent

education and capacity assessments are justified as capable of remediating risks to

children. In turn these services extend surveillance over the family and serve to focus

evidence on parental conduct and away from the child and the child’s needs. In the end,

child protection jurisprudence fails to scrutinize the need for and character of state

intervention into the family. In so doing, a residual system of support is justified as risky

parental conduct is the sole source of risk to children, justifying “soft” services on a time

limited basis.

It is also important to note that while psychiatric evidence is compiled to predict risk,

this evidence rarely predicts the risk of state removal of the child. Rather, psychiatric

411

diagnosis – provided as a “service” to the parent to help remediate problems in the family

and support family autonomy and integrity – focuses risk squarely on the parent and on

the parent’s ability and willingness to take responsibility for their “deficits”. A focus on

psychiatric evidence and parental deficit also affects the dispositional stage of the child

protection hearing. By the time numerous reports are compiled – the parent by this time

having received parental assessment services, psychological services, addictions

counselling services, parenting classes, budgeting classes, anger management counselling,

etc. – the dispositional hearing becomes almost wholly focused on parental shortcomings

and their willingness to overcome these. Again, attention is focused away from the child –

evaluating harm to the child, the child’s needs and best interests – and away from the risk

posed by state intervention with, and guardianship of, the child.

This “responsibilizing” for what should be considered social problems addressed as

our shared responsibility if we truly want to promote the best interests of children from

marginalized families, helps to justify a residual model of child protection. As a result it

also justifies a coercive engagement with marginalized families, most often, lone-mother-

headed families suffering from complicated and intersecting issues of mental health,

poverty, racism and domestic violence. Furthermore, failing to challenge this

responsibilizing and asserting that family autonomy and the best interests of children

requires greater scrutiny of the beneficence of state care of children and their substantive

social and economic support by the state, serves to further perpetuate experiences of

inequality at the intersection of mental health, poverty, racism and gendered

subordination.

412

Chapter 6: Conclusion:

Rethinking Autonomy for Marginalized Children and Families

At the end of the 19th century in Nova Scotia, the nuclear family and the

relationships among its members became a focus of law and policy. This was particularly

so in Halifax where industrialization, urbanization and economic recession exacerbated

social and economic inequalities in the city. The result of this inequality was not only a

proliferation of crime, poverty and violence, but a culture of social reform. Religious values

of temperance and moral righteousness, along with liberal values of formal equality and

the rule of law, converged on the problems of intemperance, desertion by men of their

families, cruelty to children and women’s legal personhood in particular. Women were an

important part of the reform process, becoming not just objects of reform, but also central

players directing the reforms that took place.

The family, the natural, affective sphere over which women had such intimate and

unique knowledge, became the focus of much social and legal reform effort. The legal

regulation of the relationships within the family became one way to carry out social reform.

This is not to say that social reform was carried out exclusively by repressive means; as

Nikolas Rose and others have pointed out, “[d]omestic, conjugal and parental conduct is

increasingly regulated not by obedience compelled by threat of sanction but through the

activation of individual guilt, personal anxiety and private disappointment.”

1208

The moral

regulation that accompanied the legal regulation of the family encouraged both the

subjects and objects of reform to identify as teetotalers, suffragists, and Christians in

distinction to paupers, drunkards, and sinners. But legal reform was necessary to change

society quickly and with certainty, to create and enforce married women’s property rights

1208

Rose, “Beyond the Public/Private Divide”, supra note 100 at 73.

413

and custody of their children, and to ensure the safety and proper guidance of unfortunate

children. A re-ordering of the relationships within the family was capable of changing the

social positions of individuals to meet the new social and economic challenges of

industrialization, urbanization and economic recession, without a large state apparatus.

Effecting social change through the legal regulation of the family, however, also

meant that where moral and social regulation was not effective, the recalcitrant subject

could be made to obey by force of law. Where deserting and intemperate husbands failed

to provide for their wives and children, the married woman’s rights to property could be

enforced and her rights to custody and maintenance could be ordered by the Supreme

Court. While the family regulated by the common law was accorded a sphere of privacy

and autonomy by virtue of the presence of a male head, private family law reforms at the

end of the 19th century in Nova Scotia provided that the father’s failure to provide

financially for the family would see the abrogation of his absolute patriarchal rights under

the common law.

1209

For families which could remain self-sufficient through the mother’s

wages, business dealings, personal or real property, support from extended family, or even

through the ordering of alimony and maintenance from the father, family autonomy was

maintained by shifting responsibility for the family to the mother. For the recalcitrant

subject in poverty, however, it was not private family laws but reform of public family laws

that ordered family relations at the end of the 19th century.

Criminal laws, vagrancy laws and poor laws were the laws to which the poor in the

late 19th century were subject. Even with family law reforms at the end of the century that

saw an emphasis on the delineating the private sphere of the family, the force of public and

not private laws was brought to bear on the recalcitrant subject in poverty. Furthermore,

the success of family law reform at the end of the 19th century was not as visible for women

1209

It is noteworthy, that while this was instituted in legislation, as Backhouse points out, judges

were very resistant to this change. See Backhouse, “Pure Patriarchy”, supra note 183.

414

in poverty as it was for propertied women. While propertied women – still subjugated in

both the public and private spheres – were becoming increasingly autonomous legal

subjects, women in poverty were advocating for themselves and their children without

access to superior courts, lawyers and legal protections. The intemperate or deserting

father in poverty was confronted not by lawyers, and superior Court judges, but by

philanthropists and stipendiary magistrates. However, calling on philanthropists such as

the Society for the Prevention of Cruelty to improve their positions and the positions of

their children posed its own threat. While women in poverty were successful in shaping

the activity of the Society (as Linda Gordon has pointed out, there was no Society for the

Prevention of Cruelty to Women, but women attempted to create one),

1210

they risked a

stigmatizing and potentially dangerous intervention which could see them labelled “idle

and dissolute” and their children removed from the home.

The increasing visibility of the child as a legal subject in the late 19th- early 20th

century also came with its own promises and dangers for children in poverty. While the

family, as regulated by the common law, saw the child treated as the property of his father,

law reform at the end of the 19th century saw private custody decisions increasingly focused

on the welfare of the child and parents of the child positioned more in terms of trustees for

their children than owners. Children in poverty were increasingly positioned as deserving

of support and public assistance. They were removed from the general population of the

Poor House and modern institutions were built for their care. Public provision was made

for their schooling and laws put in place that mandated their presence in schools. Hours

and conditions of work legislation was passed as was legislation safeguarding their moral

upbringing. Children were to be kept off the streets, out of saloons, places of

entertainment, and factories and they were to be prevented from consuming tobacco and

1210

Gordon, “Family Violence, Feminism, and Social Control”, supra note 43 at 472.

415

opium. In this way, children became a concern not just of their parents, but of society as a

whole.

Again, while children of propertied families were dealt with using private family

law legislation such as the Custody of Infants Act and the Court of Divorce Act, the

behaviour and care of children of the poor was regulated by public laws; the first child

protection act in Canada, the Prevention and Punishment of Wrongs to Children Act, is

but one example.

1211

The consequence was that the care of the children of the poor was

more of a social responsibility than the care of children from propertied families. However,

public concern for children in Halifax by the early 20th century was ambiguous: the child

was variously neglected and blameless or delinquent and devious. The juvenile delinquent

system regularly conflated these two categories. Nonetheless these were the children of

marginalized families and they had become a public responsibility. Their care and

upbringing were of public concern as they represented not only a current threat to the

social order, but they represented the future of the province. The juvenile delinquent and

child protection regime, along with the denominational institutions, took responsibility

not only for their care but for their proper socialization.

While public concern for the unfortunate improved the situation of many children,

for many this era represented an era of violence and dislocation. Children were removed

from their families to be molded by the institutions into productive, normal citizens. The

practices and techniques that disciplined these children were premised on the white,

productive, able-bodied, sexually appropriate child as norm. Mainstream Canadian society

1211

Prevention and Punishment of Wrongs to Children, SNS 1882, c 95, Prevention of the Use of

Tobacco and Opium by Minors, SNS 1892, c 50, Maintenance and Reform of Juvenile Offenders,

SNS 1890, c 23, Of the Transfer of Immigrant and Orphan Children, RSNS 1900, c 118, Of the

Licensing of Boarding Houses for Infants Under Twelve Years of Age, SNS 1897, c 40, Of the

Closing of Shops and the Hours of Labour Therein for Children and Young Persons, SNS 1895, c

17.

416

is only beginning to hear the voices of, and learn from the survivors of these institutions

about the extent of the suffering experienced by children who did not fit this normative

ideal. On June 2, 2015, the Truth and Reconciliation Commission of Canada released their

Calls to Action on the system of Indian Residential Schools in Canada, of which the

Shubenacadie Indian Residential School in Nova Scotia was a part.

1212

The Interim

Commission Report details the extent of the abuse and suffering experienced by some of

the children for which white Canadian society took responsibility to “civilize” and the

lasting effect this has had on First Nations in this country.

1213

In Nova Scotia we are only

beginning to learn of the violence perpetrated against African Nova Scotian children and

the African Nova Scotian community in general as a result of the abuses perpetrated at the

Nova Scotia Home for Colored Children in Preston, Nova Scotia.

1214

The era of institutionalization should have taught us that there needs to be a

healthy skepticism about the beneficence of unchecked state intervention and

guardianship of children. Lessons that we are only now coming to terms with in Canadian

society are an important warning of the violence that can be perpetrated when we do not

subject vague notions of harm to, and the best interests of, children to scrutiny. Both

denominational and psychiatric personnel were given a great deal of authority in the

institutional era of child welfare in producing the industrious, morally upright citizen from

children of marginalized populations in Nova Scotia. In the jurisprudence, denominational

and psychiatric knowledge of harm and best interests reigned over liberal assertions of

1212

Calls to Action, supra note 1206.

1213

Truth and Reconciliation Commission of Canada, They Came for the Children: Canada,

Aboriginal Peoples and Residential Schools (Winnipeg: Truth and Reconciliation Commission,

2012).

1214

June 2015 the Government of Nova Scotia announced a Restorative Inquiry into the Nova Scotia

Home for Colored Children, online: Restorative Inquiry <http://restorativeinquiry.ca/restorative-

inquiry>.

417

rights in the juvenile court. Little to no attention was paid to the legal presumption of

family autonomy of these marginalized families. This era shows us the importance of a

presumption of family autonomy for children, especially children that find themselves

marginalized at the intersection of class, gender, racism and ableism. Starting from a

presumption of family autonomy at law serves as an important critique to the vague best

interests standards developed by human service professionals, which are not free from the

demands of social relations and maintaining social order. Diagnoses and treatment of

children on the basis of “feeble-mindedness” and “recapitulation theory” served to

reinforce overarching relations of power which constructed not just the parents, but the

children of marginalized families as dependent and pathological and in need of even the

most coercive of state interventions.

The legal concept of natural parental rights that developed in the 1950s with the

critique and demise of institutionalization was important for testing the necessity and

beneficence of state interventions with children from some marginalized families. While

Adoption Acts had for decades provided unwed mothers in Nova Scotia with the basic right

to determine the adoption of their illegitimate children, it was not until courts challenged

the construction of unwed mothers as delinquent, neurotic and presumptively “unfit” that

this formal presumption of family autonomy for unwed-mother-headed families could be

realized at law. This concept of natural parental rights and the development and

enforcement of a legal concept of the autonomy of the family was necessary – although not

sufficient – to facilitate the ability of marginalized families to self-determine. While the

propertied, white, patriarchal, nuclear family was supported in its autonomy by the social,

economic, legal and political systems of the time, a notion of family autonomy in the form

of natural parental rights was essential to allow some marginalized families, especially

unwed-mother-headed families, to stay together and direct the care of their children. The

notion of natural parental rights allowed appellate courts to challenge the authority of

418

denominational personnel, psychiatrists, social workers and trial judges to determine and

act upon an uncritical and abstracted concept of the best interests of the child.

But the promise of the jurisprudence of “natural parental rights” for marginalized

families was again, uneven. While the unwed mother-headed family was finally accorded

at law the status of a legitimate family form, and thereby entitled to a legal sphere of

autonomy, this protection came with strings attached. Court protection of family

autonomy for mother-headed families was contingent not upon their status solely as being

“unwed”, or even in being wholly economically self-sufficient, but upon their conforming

to notions of “fitness” and propriety. Concepts such as the neglected child

1215

and the child

in need of protection

1216

were less concerned with one’s status, ie., as a pauper, delinquent,

unwed mother or intemperate father, but in the process parental behaviour came under

intense scrutiny. While the reforms in 1976 required the CAS to show a need for state

intervention before a determination of the best interests of the child could be made, this

need for state intervention was often predicated upon moralizing and normalizing grounds

of “fitness”. The parents that were found to be “unfit” were more likely not to match the

mold of the normal, white, middle-class, nuclear family.

While unwed mothers were declared by the Supreme Court of Canada to be

accorded a sphere of autonomy, in the post-war years these families came under particular

scrutiny by child welfare authorities and judges enforcing child welfare legislation. By the

1970s, child welfare reformers such as Michael Wald and Robert Mnookin were arguing

for more determinate notions of harm and best interests which turned attention away from

vague assessments of parental behaviour and instead, focused on the child and the child’s

needs. Recognizing that the families involved with the child protection system were

families marginalized by racism, sexism, ableism, and class, they argued that justice for

1215

Child Welfare Act, SNS 1950, c 2.

1216

Children’s Services Act, SNS 1976, c 8.

419

these families required a rigorous testing of the need for coercive intervention into the

family and a challenging of the negative value judgments made by white, middle-class

judges and social workers. This testing of the need for intervention required the state not

only to show objective immediate or imminent risk of harm to the child but proof that there

were no other reasonable means with which to protect the child, including by way of the

provision of material supports to the family.

In the last chapter I argued that changes to public assistance and social work

practice undermined the reforms advocated by Wald and Mnookin that were introduced

in the Children and Family Services Act. In particular, I argued that changes to social

assistance and changes to social work practice have had an appreciable effect on work with

families in the child protection system. When social assistance and social services are

scaled back, the child protection system is called in to remediate problems of poverty on a

crisis basis. As such, child protection scholars claim that we have seen a move back to a

residual system of child protection services, including formalistic notions of family

autonomy for families in poverty.

1217

This has not resulted in a de-regulation of families in

poverty, but rather, a re-regulation from a discourse of moral worthiness to a discourse of

risk and personal responsibility. Just as unwed mothers were constructed as dependent

and pathological, thereby justifying even the most coercive interventions in the child

welfare system, so “high risk” mothers today are targeted by child protection law and

practice and coercive, rather than supportive interventions are justified on this basis.

Similar to the impact of the discourse of maternal “fitness” in previous years,

focusing on maternal deficit as the cause of social and economic disadvantage serves to

justify the privatization of social reproduction as it is maternal behaviour and not social

1217

See for example, Lessard, “Empire of the Lone Mother”, supra note 116.

420

and economic inequality which leads to disadvantage. Instead of proof of objective harm

or substantial risk of harm to the child, and a close examination of how state interventions

will address this harm, a great deal of decision-making power has been given over to the

predictions of risk assessment tools, parental capacity assessors and human service

professionals to determine the need for intervention into the family. Furthermore, in

failing to question not only the limits of determinations of risk, but the nature of state

intervention with the family – including the provision of family preservation services and

care of the child –child protection jurisprudence reinforces rather than challenges a return

to a residual system of child protection services.

In this thesis I have tried to show that the history of child protection and the history

of welfare have been intertwined and we cannot understand one without the other.

Constructions of “bad mothers” and “intemperate fathers” are often interdependent on the

construction of the “undeserving” poor in welfare discourse. These constructions have an

important effect on where the public/private divide is drawn. While “good mothers” and

their children are provided public support, “bad mothers” are held responsible and are left

to fend for themselves. Their children, in the meantime, are left to navigate this shifting,

insecure boundary between state care and the search for a permanent private space.

This is also not to say that mothers and children have been total victims of this

social and legal regulation. However, the history of women’s activism to challenge the more

repressive aspects of child protection law and practice is a history of both successes and

defeats. The provision of Mothers’ Allowances, for example, was a double-edged sword for

women in poverty. While women’s activism and criticism of the institutionalization of

children resulted in the provision of mother’s allowances so children could remain in

mother-headed families, the provision of mother’s allowances ended up reinforcing a

particular moral regulation of mothers in poverty. Furthermore, this moral regulation

421

served to exclude unwed mothers from mothers allowance eligibility altogether and to

depict unwed mothers as presumptively unworthy of support.

Despite this moral regulation, however, unwed mothers continued to advocate for

themselves and their children, challenging the CAS preference for adopting out their

children. In the 1950s, the Supreme Court of Canada began responding to the demands of

unwed mothers for a contextual right of family autonomy. However, while they were

successful in advocating for recognition of their natural parental rights, there was a cost

for unwed mothers in poverty. As we saw at the end of Chapter 4, while natural parental

rights were an important recognition of the legitimacy of mother-headed families, they

also served to reproduce a moral regulation of unwed mothers in poverty. More young,

unwed mothers were able to maintain custody of their children, and eventually, in 1966

they became eligible for social assistance in Nova Scotia. However, at the same time unwed

mothers marginalized by classism, racism and ableism coming under close scrutiny of

child protection authorities and were subject to vague and stigmatizing determinations of

fitness.

For children, as well, this history has been one of success and limitation. Children’s

positions no doubt have improved from the days when they were kept in poor houses,

incarcerated with adult criminal populations, left in reformatories and born at unregulated

maternity homes that disposed of “invaluable” children. In 1991 the province introduced

the most child-centered child protection act the province had ever seen.

1218

And yet, my

argument in this thesis has been that no matter how “child-centered” a child protection

regime, if the concept of family autonomy on which that regime is based, does not

challenge the construction of marginalized families as unworthy, unfit and “risky,” then

1218

Children and Family Services Act, SNS 1990, c 5.

422

we are operating on an abstract notion of the best interests of the child which is in danger

of reproducing and deepening socio-economic marginalization.

A Supportive Legal Concept of Family Autonomy

The very way that dependency is conceptualized in a residual system of welfare

provision reinforces the notion that families in poverty are pathological and presumptively

risky. The private sphere of the family in poverty is far from the liberal ideal of family

privacy, marked by independence, liberty, and self-sufficiency. In this thesis I have shown

that through history the family in poverty has been the subject of repressive social and

legal regulation in ways that the middle and upper-class, white, nuclear family has not

been. The unwed mother and her illegitimate child, for example, have been the subject of

repressive interventions on behalf of law and society in this province since the very

beginning.

1219

While many women have challenged their subordinate positions through

history, using the law and other resources available to them to empower themselves and

1219

For example, SNS 1758, title 7 Bastard Act:

1. A woman, delivered of a bastard child, likely to be chargeable to the Province, who shall,

at the time of delivery, declare to the person assisting, who the father was, and shall, some

time before declare herself with child of a bastard, in either case the nearest Justice to take

examinations in writing and, at the desire of the Overseers of the Poor, or householder of

the place, to commit the father to prison, unless he give security to indemnify the place, and

to appear at Sessions, where he is to be continued on recognizance until woman delivered.

If woman die, or be married before delivery, or miscarry, or shall not be with child, person

charged to be released.

2. Where child born, the two nearest Justices at the desire of the Overseers or of a

substantial householder, upon due examination, are to make an order for the relief of the

place, and that the mother or father do find security to indemnify the place or pay 20 l. to

be given to the Overseers. If, after order made, mother or father, on notice, shall not

perform the same, they are to be committed, unless they give security to appear and

perform the order of the next Sessions, or otherwise, the first order. Appeal by party

thinking themselves injured, to be to Sessions, where the cause is to be tried by Jury.

3. A woman who falsely accuse another to be committed to the house of

corrections for six months there to be whipped. [emphasis added].

423

their children, the private sphere of their families is not a space free from interventions,

characterized by unencumbered self-sufficiency. The failure to remain free of these

interventions has come with devastating results. The liberal discourse of autonomy has

exhorted subjects to be free and independent from state support, and those that cannot be

free are constructed as dependent and pathological. As we have seen in the history of child

protection law, this construction can come with devastating effects as law steps in

coercively to discipline the child and the family, submit the child and the family to

surveillance, and remove the child from the family, in order to try to mold the child into

the self-sufficient liberal individual.

In attempting to craft a concept of autonomy that does not reproduce the same

relations of raced, gendered, and classed power, feminists have attempted to find an

empowering notion of autonomy which is supportive of mothers and children in poverty.

As Martha Albertson Fineman has argued, “Perhaps the most important task for those

concerned with the welfare of poor mothers and their children, as well as other vulnerable

members of society, is the articulation of a theory of collective responsibility for

dependency.”

1220

Fineman therefore challenges the residual nature of support which our

central liberal concepts of independence, autonomy and self-sufficiency justify:

Our state, through its capitalist nature, is perceived as having a role in the delivery

of social goods only in the case of family default. In such instances, the state might

provide highly stigmatized assistance (welfare) for those (deviant) families unable

to provide for their members’ needs.

1221

By contrast, she argues that we need to subsidize caretaking work and thereby shift

responsibility for women and children in poverty to the collective. Fineman’s notion of

family autonomy entails a “right to autonomy or self-determination for the family, even as

1220

Fineman, “Cracking the Foundational Myths”, supra note 121 at 16.

1221

Fineman, The Autonomy Myth, supra note 125 at 292.

424

it is firmly located within a supportive and reciprocal state.”

1222

She articulates a critical

feminist notion of autonomy that socializes responsibility for caretaking work on the basis

that dependency is not an aberrant state but, “unavoidable and inevitable; it is

developmental and biological in nature.”

1223

These caretakers that take on this

uncompensated work are in the main, women.

Recognizing that dependency, or vulnerability, is not a choice but an inevitable

state that we as a members of a society all have, and will all be in, grounds Fineman’s claim

for seeing caretaking as a social debt or collective responsibility.

1224

She argues for a

reconceived sphere of privacy around the caretaker-dependent relationship and in

particular, the mother-child relationship, which demands collective responsibility for this

relationship. At the same time, the caretaker-dependent relationship is provided by the

capacity (in the form of material supports from the state and supportive state policies) to

self-determine as well as the right to demand a certain sphere of non-intervention.

Autonomy is “gained when an individual has the basic resources that enable her or him to

act consistent with the tasks and expectations imposed by society.”

1225

Mothers that seek

support in order to live up to the obligations placed upon them by the state and society are

viewed as entitled to this support as of right, rather than as dependant and pathological.

1226

1222

Ibid at 294.

1223

Fineman, “The New Deal: From De-Regulation to Re-Regulation”, supra note 123 at 263.

1224

In Fineman’s more recent work she uses the concept of vulnerability rather than dependency to

ground the claim to collective responsibility for caretaking work. Her use of the concept of human

vulnerability rather than dependency, she argues, captures the notion that “vulnerability arises

from our embodiment, which carries with it the imminent or ever-present possibility of harm, injury

and misfortune.” Ibid at 267.

1225

Fineman, “Cracking the Foundational Myths”, supra note 121 at 25-26.

1226

See Fraser and Gordon, “A Genealogy of Dependency”, supra note 81 at 309.

425

Reconceptualizing autonomy in terms of support for the caretaker-dependent dyad

holds critical potential for effecting justice for mothers and children in the child protection

system. First, greater material support for these mother-headed families would keep many

from reaching the crisis points that lead them to be confronted with the child protection

system to begin with.

1227

And second, as Fineman points out, shifting to an ethic of

collective responsibility would serve to undermine the negative constructions of mothers

and children in poverty.

But as children’s advocates have pointed out, even within a system which takes

collective responsibility for the caretaker-dependent unit, we require standards of

intervention which will protect children from harm where it does occur.

1228

Collective

responsibility for caretaking would serve to undermine the material deprivation and social

regulation of mothers and families in poverty that sees them overrepresented in the child

protection system, but this would not in itself eliminate physical, sexual and psychological

violence against children. Child-focused standards of intervention to address violence to

children would still be needed, as would child-focused standards of child placement.

A concept of family autonomy which is premised on a notion of collective

responsibility and subsidy for caretaking, however, would have a profound effect on the

way that child protection services would not only define physical, sexual and psychological

violence against the child, but it would change how those acts of violence are addressed

and proven at law. Rather than the provision of soft services which turn attention back on

parental conduct and on parental fault, collective responsibility for caretaking would

1227

See Maxine Eichner, “Children, Parents, and the State: Rethinking Relationships in the Child

Welfare System” (2004-2005) 12 Va J Soc Pol’y & L 448. Beyond higher welfare rates, Maxine

Eichner also recommends the introduction of state supported day care, hours of work legislation,

the end of workfare type programs for welfare eligibility, free early childhood education programs

for children from low income families as well as, after school program for those children,

substantive substance abuse programs for their parents and greater rights to health care in general.

1228

For example, see Woodhouse, supra note 131.

426

mandate that where services are provided, hard services take priority to ensure the family

is not suffering from housing, income or food insecurity. This would shift the focus of both

finding and disposition stage hearings away from an emphasis on parenting capacity

assessments and psychological testing of the parents and more towards ensuring that the

agency has proven objective acts of violence against the child, or that there is substantial

risk of these acts being committed against the child. The findings stage would remain

focused on the violence perpetrated against the child or the substantial risk of violence

against the child, backed by objective proof of how this substantial risk is affecting the

child, ie., severe anxiety, depression, withdrawal, or self-destructive or aggressive

behaviour, etc.

Recognizing an entitlement to subsidy for caretaking work would also assist to

focus attention on what collective responsibility for the child will look like outside of the

family. Placing a high societal value on collective responsibility for dependency and

vulnerability would require the agency to show in detail what effects the child has suffered

as a result of the violence or substantial risk of violence, and exactly how state care of the

child is going to address these harms. The state would have to set out what services would

be provided to the child, what are the actual chances of adoption of the child, and the

likelihood the child will remain in foster care for years. And above all, a respect for the

caretaker-dependent unit would require a rigorous testing of state evidence as to how care

is a more desirable option for the child than parental care, once substantive services have

been provided to the family. Determinations of the best interests of the child which are

merely negative – ie., that it is in the best interest of the child to be removed from the

deficient parent – would give way to a more contextualized best interests determinations

which actually demands an articulation by the agency of the content of both the child and

427

caretaker’s right to state support and a detailed plan of what this support will look like.

1229

State support for family autonomy conceived of positively as an entitlement for the

caretaking unit, and not in residual terms (ie., the delivery of social goods only in the case

of family default) would seek to accommodate arrangements in the best interests of the

child that go beyond simply placing the family under a supervision order or removing the

child from the offending family.

A critical feminist concept of family autonomy which is based on an ethic of

responsibility for the caretaker-dependent unit, has the potential to effect justice for socio-

economically marginalized families, even in a society that does not itself take collective

responsibility for that unit. First, current depictions of family autonomy in the child

protection system depict family autonomy conceived of in terms of “parental rights” versus

“children’s rights”. The way in which family privacy has been conceptualized in the case

law presents a dichotomous picture of a greater degree of privacy resulting in the greater

degree of harm that can be inflicted on children.

1230

However, both a lack of material

support for, and negative constructions of, families justify coercive interventions that are

in themselves harmful to children, and turn attention away from a rigorous testing of what

state care of children will actually look like. As Wald and Mnookin argued, a dichotomous

view of family and children’s rights serve to undermine a child-focused system of child

protection.

1229

We see a trend emerging in Nova Scotia for example, in the cases of Nova Scotia (Minister of

Community Services) v TH, 2010 NSCA 63 and Children and Family Services of Colchester County

v KT, 2010 NSCA 72, in which the Court of Appeal has been curtailing the discretion of trial judges

to make orders for access after an order for permanent care and custody in favour of the Agency.

The Court of Appeal has held that once an order for permanent care and custody is made, the judge

no longer has jurisdiction to make orders affecting Agency decision-making. The Court seems to be

urging less judicial discretion over Agency decision-making even where orders for access are made

in the best interests of the child. This curtails the court’s ability to challenge the authority of the

state to determine what happens with children and to ensure that the state is working in the best

interests of children.

1230

See Winnipeg Child and Family Services v KLW, [2000] 2 SCR 519, SCJ No 48.

428

Instead, a critical concept of family autonomy which is capable of effecting justice

for children from socio-economically marginalized families must see that the best interests

of children from these families are provided for by both material and normative support

for family autonomy. Without support for family autonomy for socio-economically

marginalized families, abstract evaluations of what comprise the best interests of children

– based upon an idealized standard of normalcy – will reign over a rigorous evaluation of

the need for and nature of state intervention with the child. Presuming the beneficence of

coercive state intervention based upon a family’s status of socio-economic marginalization

provides us with a formalistic and inadequate concept of the best interests of the child. We

fail to take into account the warnings of child protection experts from almost half a century

ago; that even the most seemingly benign of coercive interventions with the family – such

as placing the family under a supervision order – can have negative psychological effects

for the child. Furthermore, the history of child protection law has taught us that failing to

rigorously scrutinize the need for and nature of state care of children and the abstract

notions of normalcy upon which this care is based, can have devastating effects for children

who are marginalized by racism, sexism, class and ableism.

A critical legal concept of family autonomy must start from the premise that the

way that harms have been defined, investigated and addressed by child protection law,

whether with the concept of the “delinquent or neglected child”, the “fitness” of parents,

and now, risk-focused grounds of harm, have always had a disproportional impact on the

lives of families in poverty. Since the introduction of child protection legislation in Nova

Scotia over a century ago, the families that have found themselves most often subject to

interventions are families that are marginalized by class, racism, sexism and ableism. A

contextualized notion of family autonomy in child protection law requires a recognition

and acceptance of this fact. Concepts of harm and best interests which fail to keep this in

perspective are in danger of reproducing a formalistic concept of family autonomy which

429

does not serve the interests of children or their families but rather reproduces inequality

and disadvantage.

Support for such a presumption of family autonomy in child protection law would

focus on removing the most disempowering uses of risk from the system and on

demanding a recognition of the state obligation to protect and support the child within the

family. At law, risk is most harmful when it justifies extending surveillance and control

over families while at the same time justifying less support for the family. As this thesis

has shown, not only is risk used to negatively construct socio-economically marginalized

mothers as “bad mothers” but risk is also used to responsibilize these mothers and justify

the scaling back of material supports for these families. In this thesis I have shown that the

more risk-focused the ground of harm, including the grounds of emotional harm, neglect,

and exposure to domestic violence, the more likely we will see a reliance on psychiatric and

professional evidence to assess a parent’s level of risk. It is with these grounds of harm in

particular that rely so heavily on extrapolating from parental characteristics or behaviours

to possible harm to the child, that we have to scrutinize for negative constructions of

parents and children, and for the justifying of residual support. Furthermore, the best

interests of children from socio-economically marginalized families demand that we

render visible the social and economic dynamics of harm which the categories and

technologies of risk obscure. Formalistic notions of intervention and protection which do

not address these structural risks must be seen for what they are: a failed attempt to

provide for the needs of children from socio-economically marginalized families.

As such, child protection law should mandate that the agency prove it has taken a

“differential response” based upon the grounds of harm it pleads to justify finding the child

in need of protection. Where the agency is alleging risk-based grounds, as well as the

grounds of neglect, emotional harm, or exposure to domestic violence, the agency should

not be able to make out these grounds until it has shown that it has offered “hard services”

430

to a family based upon an environmental assessment of the family’s needs. These hard

services include material supports such as to address health, income, housing and food

insecurity including income and housing maintenance services. As the CIS 2008 has

shown, both housing and income insecurity are correlated to substantiated cases of

maltreatment.

1231

Where the agency is not able to provide these services to address family

need it should not be able to legally coerce the family to accept services or face the removal

of the child.

As researchers in the field of child protection reveal, “Risk of maltreatment, neglect

and domestic violence cases seem to predominate those being referred to [child protection

services].”

1232

As a result of concerns over increased caseloads and the sustainability of

child protective services as well as a shift from “a pathological to a more

relational/ecological model” of child protective services in some jurisdictions in Canada,

1231

The 2008 CIS found that 33% of households in which a case of substantiated child maltreatment

was found received social assistance, employment insurance or other benefits. In 20% of all cases

of substantiated maltreatment, the family had experienced one move in the last twelve months, and

in 10% of cases the family had experienced two moves in the past year. In 12% of households the

presence of at least one household hazard (ie., drugs or drug paraphernalia, unhealthy or unsafe

living conditions, or accessible weapons) was found. Furthermore, 11% of households with a

substantiated maltreatment were households in public housing units. Canadian Incidence Study of

Reported Child Abuse and Neglect – 2008, supra note 910 at 42-43.

1232

Alicia Kyte, Nico Trocmé, Claire Chamberland, “Evaluating Where We’re at with Differential

Response” (2013) 37 Child Abuse & Neglect 125 at 125. Furthermore, in a separate article, some of

the authors provide further evidence of the difference between the prevalence of investigations that

met the “urgent protective investigation” criteria [severe injury or health condition; a possible

victim of sexual abuse; under four years old and high risk of serious injury as a result of abuse or

neglect] and other, non-acute investigations based on national CIS results. See Nico Trocmé et al,

“Urgent Protection versus Chronic Need: Clarifying the Dual Role of Child Welfare Services Across

Canada” (2014) 3 Soc Sci 483 at 491:

From 1998 to 2008 the number of investigations that met one of these three criteria for

urgent protective investigation has remained virtually unchanged, at a little over six

investigations per 1000 children. In contrast, other maltreatment related investigations

have more than doubled, going from a rate of 15.39 investigations per 1000 children in 1998

to 33.13 investigations per 1000 children in 2008, an increase that has been driven by

investigations of children exposed to intimate partner violence and risk assessments where

there were no specific abuse of neglect allegations. As a result, the proportion of

investigations that met our urgent protection classification has dropped from 28% in 1998

to 15% in 2008. [citations omitted]

431

the United States and Australia have introduced a differential response model of child

protection services.

1233

This differential response seeks to better discriminate between

cases where traditional protective services are needed, and cases where voluntary services

are offered, usually with links to community-based partners and networks, but no

substantiation or coercive intervention is required.

1234

While my recommendations would

not necessarily institute into law a system of differential response as envisioned by

contemporary child protection theory and practice as outlined above, I am pointing to the

perceived need in child protection practice itself to differentiate and address the

prevalence of these risk-based grounds of harm which signal chronic need, from the

grounds of physical abuse and sexual abuse which signal acute danger. It is also worth

noting, however, that in order for differential response to be effective in child protection

practice, substantive services must be provided to families by the non-protective pathway

in order to prevent a crisis situation which does lead to acute danger and the need for a

protective intervention.

Including the need to provide material supports to the family right in the definition

of risk of harm, or the grounds of emotional maltreatment, neglect and exposure to

domestic violence in the Act would serve to focus court and agency resources on where

coercive interventions are absolutely necessary. Agency and court resources would

necessarily have to focus coercive interventions on non-risk-focused cases such as physical

1233

Kyte et al, ibid.

1234

Ibid at 126:

In this system, the protective pathway is restricted to referrals where the child has been

severely maltreated, or where there is imminent risk for further abuse. The protective

pathway remains responsible for determining substantiation (i.e., CPS decision that a child

situation merits ongoing CPS involvement) through an investigation of forensic evidence,

whereas the “non-investigative” DR pathway is usually applied to cases of low to moderate

risk. This response focuses on engaging the family in an assessment of family needs and

strengths, in order to determine what is needed to ensure child safety and well-being.

Rather than being merely child-focused, DR aims to identify what individual and

environmental barriers facing the family may be contributing to the maltreatment risk.

432

and sexual harm, and on risk-based cases including emotional harm, neglect and exposure

to domestic violence where there is strong evidence of adverse effects on child functioning.

This does not mean advocating non-intervention in cases of risk of harm, emotional harm,

neglect and exposure to domestic violence. To the contrary, in this thesis I have argued

that these grounds of harm are tied to social and economic disadvantage. If we want to

provide for the best interests of children from socio-economically marginalized families

we need to address this disadvantage both normatively and materially. However, my

recommendations do mean that intervention should only include a coercive intervention

in the strongest of cases where child functioning is shown on evidence to be adversely

affected. Carefully targeting a coercive intervention in this way would focus attention on

the child’s needs and at the same time render visible the structural risks to the child such

as housing, food, health and income insecurity.

Not only have child protection scholars noted the need to institute a differential

response to funnel non-acute cases of maltreatment out of the protective services stream,

but researchers have indicated a need to focus more agency resources on addressing

physical and sexual abuse of children. Data from the 2012 Community Health Survey – a

nationally representative survey – indicated that 26% of adults reported experiencing

physical abuse and 10% of adults reported experiencing sexual abuse.

1235

A study

conducted in Ontario, however, found that only 5.1% of respondents with a history of

physical abuse as children had contact with child protective services and only 8.7% of those

with a history of child sexual abuse had contact with child protective services.

1236

While

one is a national study and one is provincial, these results tell us generally that child

1235

See Tracie O Afifi et al, “Relationship Between Child Abuse Exposure and Reported Contact

with Child Protection Organizations: Results from the Canadian Community Health Survey”

(2015) 46 Child Abuse & Neglect 198 at 199.

1236

Ibid.

433

protective services are not effectively addressing the bulk of physical and sexual abuse

cases in Canada.

1237

A differential response that limits a coercive engagement with families

on the basis of risk-based grounds of harm, would serve to focus the attention of courts

and workers, and the money invested in litigating child protection cases, towards

investigating and addressing these cases of physical and sexual abuse.

Furthermore, focusing agency and court resources on non-risk-focused cases such

as physical and sexual harm, and on risk-based cases including emotional harm, neglect

and exposure to domestic violence where there is strong evidence of adverse effects on

child functioning, would ensure that there is a focus on the needs of the child, and on not

removing the child from an environment where he or she may be functioning adequately.

The agency should be held to its burden under the Act to bring evidence to prove how this

substantial risk of harm, exposure to domestic violence, emotional harm or neglect is

impairing a child’s physical, emotional, or psychological functioning. Where the agency

cannot bring evidence of how child functioning is substantially affected, the Agency should

not be able to make out the grounds of harm or risk of harm at the 90-day protection

hearing.

Without holding the state to these standards we have what we have today: the

proliferation of a myriad of “risk-based” grounds of harm, the issuing of supervision

orders, and the mounting of a professional case against the parent focused on parental

deficit which not only keeps the parent and child under the surveillance and discipline of

the system, but it creates a “case” against the parent which they cannot “win.” In other

words, there is little testing of the actual need for, or the benefits of, state intervention into

these marginalized families. The way that these risk-based grounds are proven and acted

upon in the system is self-fulfilling. It is not only the parent that loses when the most

1237

Ibid.

434

coercive of state interventions is facilitated, unchecked. This hollowing out of a

presumption of family autonomy for families in poverty deprives children at the center of

child protection law of the benefit of a child-focused system of child protection.

Integral to supporting a contextualized presumption of family autonomy at law,

however, requires not only material support but strong legal protections. Families involved

in the system today require the same things that they needed some 135 years ago. Families

require not only material and normative support, but substantive access to justice

1238

and

legal protections. As Wald and Mnookin argued some 40 years ago, a child-focused system,

that is, a system focused on the needs of the individual child and not the abstract child,

requires a rigorous testing of the need for and benefits of state intervention into the family

relationship. In recognition of the need to scrutinize agency intervention into the family,

the least intrusive intervention model of child protection instituted provisions in the CFSA

which mandated that the agency prove objective harm or substantial risk of harm to the

child,

1239

and saw the introduction of age-sensitive time-lines to respect the child’s unique

sense of time.

1240

Furthermore, the CFSA introduced measures to ensure that Act was

implemented in a way that was consistent with the central principles of the Act and with

1238

In Nova Scotia, legal aid services are provided for families in child protection proceedings that

meet the legal aid cut off as mandated by New Brunswick (Minister of Health and Community

Services) v G(J), [1999] 3 SCR 46. However, substantive access to justice may require going beyond

the provision of legal advocates for the family. For example, success has been shown with the Center

for Family Representation program in New York where parents are partnered not only with legal

advocates but with a team of advocates such as a parent advocate, social worker and lawyer. Wendy

Bach provides the following information on the groups’ success:

While in 2012 the average stay in foster care in New York City was 6.8 months, the average

stay for a child whose parents were represented by [the Center for Family Representation]

was 2.5 months. Moreover, more than 50% of children in families represented by CFR never

enter foster care at all. [citations omitted]

Wendy Bach, “Flourishing Rights” (2014-2015) 113 Mich LR 1061 at 1074.

1239

Section 22.

1240

Section 45.

435

the needs of children and families, including the creation of a Minister’s Advisory

Committee to oversee implementation of the Act.

1241

While we introduced aspects of this system of “least intrusive intervention” with

the CFSA in 1991, we have failed to hold the state to its obligations under the Act, as well

as ensuring support for family autonomy through both material and normative support for

the marginalized family. As a result, we have now come full circle. On April 30th, 2015 the

Minister of Community Services introduced amendments to the Children and Family

Services Act which would see the protections afforded to families and children in the CFSA

largely scaled back.

Proposed Amendments to the CFSA

On April 30th, 2015, the Minister of Community Services, Joanne Bernard

introduced Bill 112, advancing the government’s proposed amendments to the Children

and Family Services Act.

1242

Among other changes, these amendments would see changes

to the following: the grounds for finding a child to be in need of protective services,

1243

reporting requirements,

1244

investigative powers of social workers,

1245

the judge’s ability to

make certain interim orders,

1246

and time limits for making final disposition orders under

1241

Section 88.

1242

Bill 112, An Act to Amend Chapter 5 of the Acts of 1990, the Children and Family Services Act,

2nd Sess, 62nd Gen Ass, Nova Scotia, 2015 (first reading 30 April 2015), online: Legislative Counsel

<http://nslegislature.ca/legc/> [hereinafter, Bill 112].

1243

Cls 1(d), cl 11.

1244

Cls 12, 13.

1245

Cl 3.

1246

Cl 24.

436

the Act.

1247

Furthermore, the proposed amendments would see the removal of a judge’s

ability to make access orders after an order for permanent care and custody even if it is in

the best interests of the child to do so.

1248

Finally, the amendments would see the

elimination of the Minister’s Advisory Committee which was initially set up pursuant to

section 88 of the Act, to “review annually the provisions of this Act and the services relating

thereto and to report annually to the Minister concerning the operation of the Act and

whether the principles and purpose of the Act are being achieved.” It is noteworthy that

the Committee was meant to be representative of both parents and Agency and Ministry

personnel, as well as representative of persons from “cultural, racial or linguistic minority

communities”.

1249

Importantly, the proposed amendments would remove the requirement to connect

the grounds of emotional harm, exposure to domestic violence and neglect to objective

evidence of harm to the child. In introducing these amendments the Minister of

Community Services explained this particular change as follows:

We can and will improve matters by intervening earlier and strengthening families.

Ideally, children will be able to remain in their own families, safe, secure and loved.

One of the keys to earlier intervention is to more clearly define what constitutes

abuse and neglect. Chronic and serious neglect should be considered as part of

child protection. Research has shown the effects of emotional and developmental

harm have a long-lasting impact on young children.

Bob Parker is the chair of the Halifax Society for Children, Youth, and Families. He

also chairs the overall provincial Coalition of Community Child Welfare Boards.

These independent, volunteer-driven organizations are located across the

province.

This coalition has called for the definition of neglect to be broadened. As Bob

Parker explains, currently there must be clear evidence of physical harm to a child

before intervention is possible. Right now, emotional abuse and developmental

neglect are not sufficient for intervention even though they can be very harmful to

1247

Cl 31.

1248

Cl 21(c).

1249

CFSA, s 88.

437

a child. This amendment will enable us to support families earlier and stop

situations from escalating.

1250

For example, section 22(2)(f) of the Act currently requires that the Agency show that the

child who has been harmed emotionally is suffering from any of a number of identifiable

psychological effects:

(f) the child has suffered emotional harm, demonstrated by severe anxiety,

depression, withdrawal, or self-destructive or aggressive behaviour and the child's

parent or guardian does not provide, or refuses or is unavailable or unable to

consent to, services or treatment to remedy or alleviate the harm; [emphasis

added]

The amendments, however, would remove the requirement to demonstrate that emotional

harm has caused psychological harm to the child. The amendments would see the current

22(2)(f) removed and the following ground introduced:

(f) the child has suffered emotional harm, inflicted by a parent or guardian of the

child or caused by the failure of a parent or guardian to supervise and protect the

child adequately;

1251

Furthermore, the proposed amendments would see the removal of the requirement of the

agency to show that the parents failed to obtain services on a voluntary basis. This is

1250

Nova Scotia, House of Assembly, Hansard, 62nd Ass, 2nd Sess (7 May 2015) at 5155 (Hon Joanne

Bernard). In his article, “Reforming Ontario’s Child and Family Services Act: Is the Pendulum

Swinging Back Too Far?” Nicholas Bala addresses the long-running complaint that the grounds of

neglect and emotional harm in statutes based upon the “least intrusive intervention” model are too

narrow and that they allow parents to abuse their children:

A central theme of criticism of the 1984 C.F.S.A has been that children have been

endangered because the definition of "child in need of protection" is too narrow, and that

the definition required agencies to leave children with parents who abused or even killed

them. However, all of the child abuse deaths arose in cases that were within the present

definitions of "substantial risk of physical harm." The problems arose because of difficulties

that agency workers had with evidence gathering or (at least with hindsight) from the

failure to exercise proper judgment. No definition of child in need of protection will

eliminate the need for professional judgment and sometimes very difficult individualized

decision-making.

Bala, “Pendulum Swinging Back Too Far?”, supra note 947.

1251

Bill 112, cl 11(a).

438

likewise inconsistent with the least intrusive intervention model of child protection

services.

The proposed amendments would also see a new definition of “emotional harm”

included in the definition section: “’emotional harm’ means harm to a child's self-concept

or self-worth or harm that seriously interferes with a child's healthy development,

emotional functioning and attachment to others.”

1252

Disconnecting the grounds of

intervention from evidence of harm to the child makes it difficult to test Agency evidence

of emotional harm. Counter to the original intent of the least intrusive intervention model

of child protection, this amendment effectively lowers the threshold for Agency

intervention into the family and it fails to focus intervention on the harm to and

subsequent needs of the child. The amendments make similar changes to the grounds of

exposure to domestic violence and neglect; grounds which in this thesis I have shown are

particularly vulnerable to negative evaluations of socio-economically marginalized

mothers, and to extending a coercive intervention with families in poverty.

The proposed amendments would see the removal of the need for the agency to

show that the child has suffered physical or emotional harm as a result of exposure to

domestic violence. Furthermore, the proposed amendments would see the removal of the

necessity to show repeated exposure to domestic violence, potentially contemplating a

single incident. The current ground for intervention provides as follows:

22(2)(i) the child has suffered physical or emotional harm caused by being exposed

to repeated domestic violence by or towards a parent or guardian of the child, and

the child's parent or guardian fails or refuses to obtain services or treatment to

remedy or alleviate the violence;

The amendments would see that ground of intervention read as follows:

(i) the child has been exposed, directly or indirectly, to violence in the home or

involving a relative of the child, and the child's parent or guardian fails or refuses

1252

Cl 1(g).

439

to obtain services or treatment, or to take other measures, to remedy or alleviate

the violence;

1253

The ground would not require that the child be exposed “directly” but rather, the child

could be exposed “indirectly”, as well, and the child could be found to be in need of

protective services. The amendments proposed to this ground further expose a mother

suffering domestic violence in the home to a coercive intervention on behalf of the agency.

Even if a mother ensured that her child was not directly a witness to domestic violence in

the home, nor was the child suffering any physical or emotional harm from the un-

witnessed domestic violence, she could potentially see her child being declared a child in

need of protective services. It is noteworthy that the proposed amendments do not contain

any definition of what constitutes domestic violence. This amendment, could further

threaten the safety of a mother who is a victim of domestic violence as well as her child by

preventing her from seeking outside help to remedy the violence.

Finally, and potentially most disturbingly, the proposed amendments would see

the requirement that the agency show a child has suffered physical harm caused by neglect

removed from that ground of intervention. Currently, the ground for finding a child in

need of protective services for neglect requires that:

22(2)(j) the child has suffered physical harm caused by chronic and serious neglect

by a parent or guardian of the child, and the parent or guardian does not provide,

or refuses or is unavailable or unable to consent to, services or treatment to remedy

or alleviate the harm;

22(2)(ja) there is a substantial risk that the child will suffer physical harm inflicted

or caused as described in clause (j);

The proposed amendments would see these two grounds read as follows:

(j) the child is experiencing chronic and serious neglect by a parent or guardian of

the child;

1254

1253

Cl 11(a).

1254

Cl 11(f).

440

(k) there is a substantial risk that the child will experience chronic and serious

neglect by a parent or guardian of the child, and the parent or guardian does not

provide, refuses or is unavailable or unable to consent to, or fails to co-operate with

the provision of, services or treatment to remedy or alleviate the harm;

1255

The amendments propose to include the following definition of neglect in the definition

section of the Act:

(p) "neglect" means the failure to provide

(i) food, clothing, shelter or any necessary medical, surgical or other

remedial intervention;

(ii) supervision necessary to ensure a child's health, safety and well-being;

(iii) a supportive, nurturing and encouraging environment necessary for a

child's emotional development and well-being.

1256

Removing the requirement for the agency to show physical harm to the child lowers

the threshold for testing the necessity of agency intervention to such a degree that it

threatens to potentially expose any family to agency intervention in which there is a child

that is at risk for not receiving a “supportive, nurturing and encouraging environment”. It

has now been well established that the ground of neglect is tied to socio-economic

marginalization.

1257

Not only does the removal of the requirement of the agency to show

harm to the child on the basis of neglect lower the threshold for intervention in families in

poverty, but the tying of neglect to a child’s “emotional development and well-being”

further exposes marginalized families to damaging value judgments.

The inclusion of factors predicated upon a testing of a child’s “emotional

development and well-being” hands over a great deal of decision-making authority to

assessors and therapists who will be called upon to give this evidence. Marginalized

families who have to make difficult financial and time-management choices because of

1255

Ibid.

1256

Cl 1(h).

1257

See for example, Dee Wilson & William Horner, “Chronic Child Neglect: Needed Developments

in Theory and Practice” (2005) 86 Families in Society: J of Cont Soc Serv 471; Dorothy Roberts,

Shattered Bonds: The Color of Child Welfare (New York: Basic Books, 2002).

441

constrained circumstances may find themselves charged with risking their children’s

“emotional development and well-being”. Families in poverty who are at higher risk for

experiencing mental health disorders may find themselves particularly disadvantaged by

this ground of developmental neglect. As discussed, this will have a disproportionate

impact on single-mother-headed and racialized families who comprise a relatively higher

proportion of low income families in Nova Scotia.

1258

While the Minister has hailed these amendments as supporting vulnerable children

and families, the Government has not announced new funding for the Department of

Community Services. Instead, the Minister announced that $2 million would be given to

non-profit community based agencies around the province.

1259

While this funding to family

resource centers is important for low income families it does not address issues of income

insecurity and housing insecurity faced by so many vulnerable families in Nova Scotia. The

lack of additional funding to the Department is particularly troubling as the amendments

expand reporting requirements

1260

and the grounds for intervention could potentially see

a sharp increase in reported incidents of maltreatment, investigations, and children found

in need of protective services. A lack of funding was raised in the Minister’s Advisory

Committee as a consistent source of frustration for both families and social workers in the

system.

1261

Even prior to these proposed amendments coming into force there were reports of

a sharp increase in referrals, investigations and cases of substantiated maltreatment from

1258

Vanier Institute, supra note 1070; Canada, National Council of Welfare, Poverty Profile: Special

Edition, A Snapshot of Racialized Poverty in Canada, online: (30 January 2012).

1259

Nova Scotia, House of Assembly, Hansard, 62nd Ass, 2nd Sess (7 May 2015) at 5148.

1260

Bill 112, cls 12, 13.

1261

Minister’s Advisory Committee 2008, supra note 53.

442

2012-2013 to 2014-2015. In 2012-2013 there were 9035 referrals, 6601 investigations and

1249 substantiated cases of maltreatment.

1262

In 2014-2015, however, these numbers rose

sharply to 14,045 referrals, 9530 investigations and 3431 substantiated cases of

maltreatment. This is a ~45% increase in referrals and investigations and a staggering

270% increase in cases of substantiated maltreatment. In 2014-2015 there were 1200

supervision orders issued and the Minister indicates that 114 children were brought into

care that year. It is likely given the almost threefold increase in substantiated cases of

maltreatment from the 2012-2013 year that this resulted in the sharp increase in the

number of supervision orders in 2014-2015. However, there is no indication that the

Department’s budget is increased to meet this added demand and indeed, as stated, that

Department saw a transfer out of over $40 million in that same time period.

1263

Nor did

the Government indicate how it would finance what is likely to be yet another increase in

the demand for services should the proposed amendments be passed.

A lack of increased funding for the Department raises questions as to how services

will be provided to more families sufficient to get them to the point where the Agency may

terminate their intervention with the family. While the Minister indicates that rates of

permanent care and custody in Nova Scotia are low at 5.6% of Court proceedings, this does

not indicate the extent of potentially coercive intervention with families.

1264

While 114

children were ordered into the permanent care of the Agency in 2014-2015, 1200 children

were the subject of supervision orders. This means that hundreds of families were under

1262

Nova Scotia, House of Assembly, Hansard, 62nd Ass, 2nd Sess (7 May 2015) at 5148 (Larry

Harrison).

1263

See Provincial Budgets for 2012-2013 to 2014-2015, online: Department of Finance

<http://www.novascotia.ca/finance/en/home/budget/budgetdocuments/default.aspx>.

1264

Nova Scotia, House of Assembly, Hansard, 62nd Ass, 2nd Sess (7 May 2015) at 5155 (Hon Joanne

Bernard).

443

the scrutiny of the Agency, potentially against their will. As discussed in Chapter 5, it is

more likely that a family in poverty will experience support through services such as

housing and income maintenance and child care subsidy. On the other hand, services such

as budgeting and parental advice extend a system of surveillance and monitoring of

parental behaviour without providing much in the way of determinate outcomes.

1265

Without commitments to funding the services necessary to meet the increase in

supervision orders that already occurred in 2014-2015, it is unclear what types of

supportive services will be provided to families if these new definitions of harm to the child

are accepted into law and more cases of maltreatment are investigated and substantiated.

Finally, a firm commitment to an increase in funding for services to families in the

system is required given the changes that Bill 112 seeks to make to the terminal time lines

under the Act. The proposed amendments would see section 45 of the Act repealed and the

following terminal time lines substituted:

45 (1) The duration of a disposition order made pursuant to Section 42 must not

exceed three months.

(2) Subject to Section 45A, the cumulative duration of all disposition orders made

pursuant to Section 42 in respect of a proceeding must not exceed twelve months

from the date when the initial disposition order is made.

(3) Where the parties are referred to restorative conferencing during a proceeding,

the maximum cumulative duration of all disposition orders made pursuant to

Section 42, as determined pursuant to subsection (2), must be reduced by the

amount of time equal to that spent by the parties in restorative conferencing.

45A Where a child has been the subject of more than one proceeding and the

cumulative duration of all disposition orders made pursuant to clause (c) or (d) of

subsection (1) of Section 42 in respect of the proceedings exceeds eighteen months,

the Court shall, in the child's best interests,

(a) dismiss the proceeding; or

(b) order that the child be placed in the permanent care and custody of the

agency, in accordance with Section 47.

1266

1265

See Wald, supra note 912; Wald, “Beyond CPS: Developing an Effective System for Helping

Children in “Neglectful” Families: Policymakers Have Failed to Address the Neglect of Neglect” 41

Child Abuse & Neglect 49.

1266

Bill 112, cl 31.

444

While the current time limits under the Act differentiate between the type of

disposition order issued and the age of the child – ie., a shorter duration for younger

children – the proposed amendments would impose a one-year time limit on disposition

orders even for older children. Furthermore, the proposed amendments now introduce a

cumulative time limit for all disposition orders for the child. This means that if a family

has been involved with the Agency before and the child has been subject to a temporary

care and custody order or under the supervision of the Agency in the care of a person other

than the parent or guardian of the child, then on the second proceeding the total duration

for the parents to remediate the situation will in all likelihood be less than one year. While

on the one hand it can be argued that this will foster greater certainty for children as it

prevents proceedings for going on too long, it also means that more children are likely to

end up on the permanent care and custody of the Agency.

The stricter time limits will mean that parents will have less time to complete

treatment programs, get into stable housing and employment situations, benefit from

counselling and generally, remediate what in many cases are complex and interlocking

personal, social and economic problems. While it can be argued that faster rates of

permanency planning in terms of adoption and guardianships are good for younger

children, the same cannot necessarily be said for older children. The initial time limits at

section 45 of the CFSA recognized that children under 12 had a different sense of time than

children over 12. For this reason, the time limits for disposition were extended to 18

months for children over the age of 12 who in all likelihood had a greater potential for

having attached to a parent.

1267

Furthermore, while the potential of finding an adoptive

home for a child under 4 is quite high in Nova Scotia, the same cannot be said for children

1267

Section 45(1)(b).

445

over that age. Rates of adoption of children over 5 are low and rates of adoption for

children over the age of 11 in Nova Scotia are lower still.

1268

This means that with tighter

time limits an older child will be less likely to be reunified with his or her family, while at

the same time facing the real risk that they will not be permanently placed in an adoptive

home. Combined with the dwindling numbers of foster families in Nova Scotia, it is hard

to see how tighter time limits for older children will be in their best interests.

1269

The expanding of the scope of intervention into the family while at the same time

limiting the actual services and support that can be offered to the family is not consistent

with a contextual view of family autonomy nor is it in the best interests of children from

marginalized families and communities. Furthermore, the focus on “soft services” serves

to reproduce the construction of marginalized families as risks to their children, thereby

undermining a rigorous testing of the need for state intervention into the family. The

proposed amendments, particularly those to the grounds for finding a child in need of

protective services, relieve the agency of having to show that intervention will be in the

best interests of children. By turning the focus of adjudication away from the actual quality

of state intervention and towards parental fault, the proposed amendments further serve

1268

Nova Scotia, Department of Community Services, An Introduction to Adoption and Foster Care

Information Session, “Children Coming into Permanent Care vs Children Placed for Adoption

2009-2012” (accessed October 2013) [on file with author]. For the years 2009-2012, the following

is a breakdown of children who came into care (675) vs children placed for adoption (359) in Nova

Scotia:

0 to 4: 258 children came into care vs 240 placed for adoption:

5 to 10 years: 176 children came into care vs 81 placed for adoption

11 to 19 years: 241 children came into care vs 38 placed for adoption.

1269

Research in the US on the ASFA found that older children who were not reunified with their

families ended up leaving foster care through emancipation more often after tighter time limits were

imposed (ie. 7% in 1998 and 11% in 2011). While the proposed amendments would see services

extended to children over 16, in the US these services were extended to 18 and even 21 years of age.

And still after emancipation, research shows that these young adults had poor outcomes including

“low educational attainment, low earnings, high rates of pregnancy, relatively high rates of

homelessness, and so on”. See Clare Huntington, “The Child Welfare System and the Limits of

Determinacy” (2014) 77 Law & Cont Prob 221 at 244.

446

to de-contextualize state intervention into socio-economically marginalized families and

reinforce the constructions of marginalized persons, especially mothers, as “risky” and

lacking “personal responsibility”. Rather than supporting a concept of family autonomy

which provides protections for the best interests of the child at hand, the amendments

serve to relieve the agency and the courts of the obligation to scrutinize and provide for the

needs of the child and family as a whole.

On June 2, 2015, the Truth and Reconciliation Commission released its calls to

action to begin reconciliation. “The 94 calls to action represent the first step toward

redressing the legacy of Indian Residential Schools and advancing the process of

reconciliation,” said the Honourable Murray Sinclair, chair of the Commission, in

releasing the Calls to Action.

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The first at the 94 calls to action demand that federal,

provincial, territorial and Aboriginal governments commit to reducing the number of

Aboriginal children in care by monitoring and assessing neglect investigations, and by

providing adequate resources to enable Aboriginal communities and child welfare

organizations to keep Aboriginal families together where it is safe to do so.

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Greater

scrutiny of state action into marginalized families is not just about “parent’s rights” – their

rights to liberty and their rights to security of the person. Demanding more substantive

support for families and – in many cases, such as First Nations and African Nova Scotian

– communities, is above all, in the interests of the children from these families and

communities.

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1270

Truth and Reconciliation Commission of Canada, News Release, “TRC Releases Calls to Action

to Begin Reconciliation” (2 June 2015), online: TRC

<http://www.trc.ca/websites/trcinstitution/File/TRCReportPressRelease%20(1).pdf>.

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Truth and Reconciliation Commission of Canada, Calls to Action, supra note 1206 at (1) i. to

iii.

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Restorative Inquiry, supra note 133.

447

In many ways, the CFSA represented a culmination of what we have learned from

the history of child protection law and jurisprudence. The Act is meant to be service

focused, to respect the presumption of family autonomy and integrity, to do away with

vague standards of harm which invite negative value judgments about parents, and instead

to focus on the actual needs of the child. Rather than ensuring that we are living up to our

commitments under the CFSA in the name of supporting family autonomy and securing

the interests of children from marginalized families, we see the government introducing

changes to the Act that would see the scaling back of the protections for socio-economically

marginalized children and families. We see an undermining of protections for family

autonomy in favour of agency evaluations of what constitutes a child’s normal, “healthy

development”

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and a “nurturing…environment”.

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The scaling back of measures to

scrutinize not only the beneficence, but the quality, of state care of the child

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while at the

same time demanding a greater role for the state in determining what constitutes the

normal child, is reminiscent of an era that has already proved itself to be inimical to the

best interests of children marginalized by racism, poverty, sexism and ableism.

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Cl 1(1)(g).

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Cl 1(1)(h)(iii).

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Cls 24(1)(a); 31; 59(a); 33(1);

On the Poverty of Responsibility_ A Study of the History of Chi-8-454

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