THE INTERNATIONAL
JOURNAL OF
CHILDREN’S RIGHTS
International Journal of Children’s Rights 19 (2011) 21–54
brill.nl/chil
Children’s Rights, Paternal Power and Fiduciary Duty:
From Roman law to the Supreme Court of Canada*
Anne McGillivray
Faculty of Law, University of Manitoba, Winnipeg, Canada
The power which we have over our children is peculiar to Roman citizens; for there are no other men possessing such a power over children
as we have.
— Justinian, Institutes (535: 270)
the relationship between
blackbird and fencepost, between
the cow and its egret, the field
and wildflowers overrunning the field —
so little depends upon their trust.
— Randall Mann, “Fiduciary” (2002: 91)
Abstract
Parental rights originate in patria potestas, the proprietary power of the Roman father, and its incidents of custody, control and corporal punishment. Parental rights as proprietary rights, as rights
over another, cannot co-exist with children’s rights. What, then, are parental rights in the age of
children’s rights? This Essay surveys the influence of Roman doctrine on modern law in and through
the Supreme Court of Canada. The court acknowledges children’s rights, views proprietary rights
over children as a thing of the past and recognizes custody as the child’s right, not the parent’s. Yet
the court vitiated the fiduciary standard for parents, limited state parens patriae jurisdiction and
upheld two of the three incidents of patria potestas. By making childhood an excuse for avoiding
principled rights analysis, conflating adult interests with children’s rights and confusing assault with
touch, the court upheld the proprietary rights of corporal punishment and control. If parental
rights are understood as rights correlative to parental fiduciary duty, and if rights are seen as markers
of relationship rather than its antithesis, then the law is rid of archaic notions of parental rights. The
way is open to substantive judicial and social engagement with the rights of the child.
Keywords
children’s rights; rights theory; paternal rights; maternal rights; parental rights; proprietary rights;
Roman law; patria potestas; parens patriae; custody; equity; fiduciary duty; best interests of the
child; assault; touch; corporal punishment; autonomy rights; participation rights; Convention on
the Rights of the Child (articles 3, 5, 9, 12, 13, 14(2), 18, 19, 28); Canadian Charter of Rights and
Freedoms (sections 1, 2, 7, 15); Canadian Criminal Code (sections 43, 265)
*) Versions of this essay were presented at the Conference on Best Interests of the Child: Meaning
and Application in Canada, UNICEF, Justice for Children, and the David Asper Centre for
© Koninklijke Brill NV, Leiden, 2011
DOI 10.1163/157181810X527996
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A. McGillivray / International Journal of Children’s Rights 19 (2011) 21–54
Introduction
Reaching into water to touch a stone, the hand misses its mark: water bends light.
So does childhood bend rights, in the jurisprudence of the Supreme Court of
Canada. In the face of children’s rights, are parental rights over children a thing
of the past? In recent decisions, the Supreme Court rejected ancient grounds of
paternal rights, calling them nothing more than interests, claims or wishes. Even
so, the court lowered the fiduciary bar for parents, upheld the proprietary right of
chastisement, and justified a statutory incursion into the autonomy rights of
mature children. In so doing, the court verged on overturning one of three rights
inherent in paternal power, the paternal right of custody, and upheld the other
two — the rights of chastisement and control.
This essay considers the meaning of parental rights in the era of children’s
rights, in and through recent jurisprudence of the Supreme Court of Canada. In
Part I, I survey the history and origins of children’s rights. In Part II, I consider
the origin of parental rights in patria potestas and its incidents of custody, control
and corporal punishment and the origins of parens patriae. In Part III, I note the
rebirth of the power of custody as a right of the child. In Part IV, I turn to the
state-child and parent-child fiduciary relationship and the evisceration of the best
interests standard in the Supreme Court jurisprudence. In Part V, I consider the
power of chastisement and the court’s constitutional analysis of the defence of
correction and in Part VI, the power of control and the court’s analysis of a
mature minor’s autonomy rights. In Part VII, I consider the problem of touch. In
Part VIII , I conclude that parental rights are best understood as rights correlative
to fiduciary duty. This rids the law of archaic notions of proprietary rights, opening the way to substantive engagement with the rights of the child.
I. From status to relationship — the path of children’s rights
For much of Western history, the mark of childhood was legal incapacity. Under
Roman and common law, a child was infantia, incapable of legal speech, innocentia, incapable of harm, doli incapax, incapable of wrongful intent, alienis juris,
outside the law, and the property of the father. Children were classed with the
mentally disabled and the mentally disordered. As Thomas Hobbes explains in
Leviathan, “Over natural fools, children or madmen there is no law, therefore no
Constitutional Rights, University of Toronto 27-28 February 2009, and the Canadian Law and
Society Association Meetings, Concordia University 2-4 June 2010. I am grateful to Cheryl Milne,
Director of the David Asper Centre, and to Mark Carter, University of Saskatchewan College of
Law, for their many helpful comments. Case names are italicized, using a short form. Full citations
are provided in the list of references.
A. McGillivray / International Journal of Children’s Rights 19 (2011) 21–54
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rights, no more than over brute beasts, nor are they capable of the title of just or
unjust because they have never had the power to make any covenant” (Hobbes,
1651: 2, 26) The child is in “absolute subjection” to the father or mother, who
may alienate or kill her “when he or she, in his or her conscience, think it to be
necessary” (Hobbes, 1650: 4, 8). The child’s subjection derives “from the Childs
Consent, either expresse, or by some other sufficient means declared” (Hobbes,
1651: 2, 20). The child’s subjection to the father, Robert Filmer writes in
Patriarcha, is “by the ordination of God himself ” (Filmer, 1680: 1, 4). “The
father of a family governs by no other law than by his own will” and no nation
“allows children any action or remedy for being unjustly governed” (Filmer, 1680:
3, 1). In his Second Treatise of Government in response to Filmer, John Locke disputes paternal ownership but agrees that, as the child “has not understanding of
his own to direct his will, he is not to have any will of his own to follow: he that
understands for him, must will for him too … the will of the parent must be
substituted” (Locke, 1690: 6, 55). In his essay On Liberty, John Stuart Mill declares,
“Over himself, over his own body and mind, the individual is sovereign” (Mill,
1859: 10). Sovereignty is for adults only: “We are not speaking of children, or of
young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others,
must be protected against their own actions as well as against external injury.”
Under the will or agency theory of rights expounded by Hobbes, Locke and
Mill, rights flow from rationality, autonomy and power. Lacking these, children
cannot be rights-bearers. Only if children can be shown to be self-determining
moral agents, David Archard (1993) argues, can they escape parental ownership
and other-determination. The interest theory of rights lets children in. As Joseph
Raz (1984) explains, a law creates a right if it is based on an interest which is sufficient ground to hold another to a duty. “By articulating children’s interests as
rights, and incorporating evidence traditionally associated with ideas about their
best interests, within such rights”, Jane Fortin suggests, “the courts can develop a
more structured and analytical approach to decision-making” (Fortin, 2006: xi).
The interest theory underlies the Canadian Charter of Rights and Freedoms,
which recognizes every human being in Canada as a rights-bearer (1982: section
15; “Charter ”). That children have the same rights as any other citizen is explicit
in the Charter. That these rights deserve universal recognition, and that children
need special protection, is the rationale for the Convention on the Rights of the
Child (1989; “Convention ”).
The Convention originates in the non-binding Geneva Declaration of the
Rights of the Child (1924), inspired by the atrocities of World War I. The atrocities of World War II led to a new era in international human rights and an
expanded but non-binding Declaration of the Rights of the Child (1959). The
Declaration promised children the rights and freedoms due to all mankind and
“special safeguards and care” A binding convention was called for in 1978, the
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International Year of the Child. Canada’s ratification of the Convention in 1990
was completed by the affirmation of its provinces, Alberta last in 1999 (Arnold,
1999). In naming autonomy and participatory rights and specifying child-centred
protection rights, the Convention follows the Declaration’s dual stream but
achieved what the Declaration failed to do. It has established a new image of
childhood — the child as rights-bearing member of society.
For Jennifer Nedelsky, rights can have meaning only in terms of the collective,
as markers of relationships of equality. In this view, children’s rights are fully
equivalent to adults’ rights. “What makes autonomy possible is not separation,
but relationship” (Nedelsky, 1993: 8). Rights provide the structure of relationships which foster the development of autonomy, so that “dependence is no
longer the antithesis of autonomy but a precondition in the relationship —
between parent and child, student and teacher, state and citizen — which provide
the security, education, nurturing, and support that make the development of
autonomy possible.” Nor is autonomy “a static quality that is simply achieved one
day. It is a capacity that requires ongoing relationships that help it flourish.” The
source of autonomy is the collective. Dependence is not a defect that proscribes
rights but an attribute of all human relationships. Rights are not about an improbable autonomy. They mark the nexus of strands in the web of mutual respect and
support. “The notion of children’s rights has wrought a historical sea change,”
John Wall observes (2008: 523). Although coloured with adult notions of autonomy, liberty, entitlement and agency, children’s rights ground human rights in “a
postmodern circle of responsibility to one another.” Rights, then, are about
relationship.
The Charter and the Convention recognize that rights are grounded in birth,
with a human in being, and belong to the person, not to another (McGillivray,
1994). Paradoxically, the Convention speaks of parental rights in articles dealing
with child protection, guiding the child’s exercise of rights, and directing the
child’s right to freedom of thought, conscience and religion consistent “with
the evolving capacities of the child”. Article 3.2 requires that the state “ensure the
child such protection and care as is necessary for his or her well-being, taking into
account the rights and duties of his or her parents”. Article 5 requires that it
“respect the responsibilities, rights and duties of parents …. to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and
guidance in the exercise by the child of the rights recognized in the present
Convention” and Article 14.2 that it “respect the rights and duties of parents” in
providing “direction to the child in the exercise of his or her right [to freedom of
thought, conscience, and religion] in a manner consistent with the evolving
capacities of the child.” The words are innocuous. The problem is that parental
rights are status rights conferring power over another, here the child, subordinating the other’s will to that of the status-bearer. Once common in the law, status
gave to some a proprietary and magisterial power over others — master over
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servant, pupil or apprentice, warden over prisoner, husband over wife, father over
child. This is the classic zero-sum game played out in the will or agency theory of
rights in which rights owned by the status-bearer are handed down at will to the
other, depleting the rights-stash of the status-bearer. Other-directing rights are
for the most part anathema in liberal philosophy and modern rights discourse
(Carter, 2007). If parents have rights over children, then children cannot have
rights, certainly not of the kind guaranteed by the Charter and the Convention.
What were, and are, parental rights?
II. Patria potestas and parens patriae
Roman doctrine casts a long shadow over contemporary childhood (McGillivray,
1998, 2004). Parental rights derive from patria potestas, a proprietary, magisterial
and arbitrary power belonging to the father as pater familias. Incident to potestas
were the rights of custody or ownership of the child’s body, name, sale, trade, and
labour; control of the child’s education, emancipation, and religion; and the magisterial power of corporal punishment, including exposure of newborns, chastisement and death. Potestas was exercised over all household members — wives,
relatives, servants, offspring, as the pater’s dominium extended over chattels and
slaves.
Potestas had “no parallel anywhere in the irresponsible and despotic authority
which the Roman father could legally exert over his offspring and the other members of his household” (Justinian, 535: Scott, Preface). Children “were treated
with no more consideration than domestic animals. It was entirely optional with
the father whether his offspring should be spared and brought up, or abandoned
and suffered to die of starvation.” In the latter days of the Roman Empire, potestas was restricted by a series of Novels emancipating sons and cruelly treated
children from paternal control (Justinian, 533: 37.12.5 [Trajan, 98-117]); making child-killing a quasi-murder (Justinian, 533: 48.9.5 [Hadrian, 117-138]);
prohibiting chastisement (corporal punishment) beyond moderate flogging
(Justinian, 529: 8.46, [Severus, 227]); and imposing the penalty for parricide on
fathers who killed children: “The offender shall be put to death neither be death
by sword, nor by fire, nor by any other ordinary method, but shall be sewed up
in a sack with a dog, a cock, a viper, and a monkey, and, enclosed with these wild
animals and associated with serpents, he shall be thrown into the sea” (Justinian,
533: 48.19.16 [Constantine, 318-19]). The last of these Novels was issued in
365. The edict removes the paternal power of chastisement of adults and restricts
it to minor children, prohibits “extremely severe castigation for the faults of
minors” and removes paternal jurisdiction over “atrocious crimes” to the law
courts (Justinian, 529 [Valentinian and Valens, 365]). The 365 edict is the origin
of the defence of correction by force.
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Patria potestas with its incidents of custody, control and corporal punishment
filtered into English common law through the Roman-based canon law of the
ecclesiastical courts which had jurisdiction over family matters, the steady influx
of Roman doctrine contributed by legal scholars trained on the continent and the
rediscovery, circa 1100, of Justinian’s Corpus Iuris Civilis (Digest, 529; Codex,
533; Institutes, 535; van Caenegem, 1992; McGillivray, 2004a). Patria potestas
is balanced against another Roman doctrine, that of parens patriae, the fiduciary
jurisdiction of the state over those unable to care for themselves (McGillivray,
2004a). A doctrine, principle, power, concept or ideology, parens patriae derives
from the Roman emperor’s title pater patriae, father of the state. Its earliest legal
expression is the Twelve Tables of 451 BCE: “If a person is a fool, let this person
and his goods be under the protection of his family or his paternal relatives, if he
is not under the care of anyone.” The doctrine of fools was extended into notions
of capacity and guardianship that underlie Roman law and structure legal incapacity, including childhood, today. That parens patriae is an equitable jurisdiction of the state was declared in 316 by Constantine: “It is part of Our duty, and
it is lawful for Us alone to interpret questions involving equity and law.” English
monarchs claimed the title of pater patriae after the Norman conquest. The care
of orphaned children, the mentally-disordered and the mentally-disabled fell
under the king’s jurisdiction as parens patriae (McGillivray, 2004a). Jurisdiction
over wealthy orphans and oversight of the lucrative trade in wardships was transferred from Chancery to the King’s Court of Wards in 1540.
The custodial jurisdiction of the modern state over all children is traced to the
return of the Crown’s wardship jurisdiction to Chancery in 1660 (Baker, 2002),
severing the connection of wardship to property and making the jurisdiction
prospective rather than retrospective. As Lord Chancellor Somers explains, “In
this court there were several things that belonged to the king as pater patriae, and
fell under the care and direction of this court, as charities, infants, idiots, lunatics,
etc. Afterwards such of them as were of profit and advantage to the king were
removed to the court of Wards by the [1540] statute; but upon the dissolution of
that court, came back again to the Chancery [in 1660]” (Falkland, 1698: 818).
Wardship, which should have disappeared with the Court of Wards, was retained
by Chancery and justified under its parens patriae jurisdiction (Cary, 1696: 818).
Chancery’s jurisdiction was less certain where the child’s father remained in the
picture. At law, the father’s power was viewed in Roman terms: “The father has
the guardianship [custody and control] of his son jure naturae, and this is inseparable and cannot be waived” (Ratcliffe’s Case, 1592: 39b). Guardianship might be
terminated as a matter of equity in cases of abandonment, moral turpitude, fraud
or estate mismanagement but Chancery could not otherwise interfere with the
absolute right of the father.
In an unusual departure, Lord Mansfield recognized “the preferable right of
the father” but states that the court has “a discretion for the good of the child
to decide each particular case on its circumstances” (Delaval, 1763). A girl of
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18 indentured by her father to a master who assigned her to another man “for bad
purposes” was ordered to “be discharged from all restraint, and be at liberty to go
where she will.” Paternal rights are here vitiated by a series of indentures, the last
of which was void for improper purpose. Delaval represents the conflict between
(natural) paternal power, the assigned rights of masters and the equitable jurisdiction of the courts. It was, perhaps, a case before its time.
While Chancery remained reluctant to interfere with paternal rights, criminal
prosecution was becoming a more frequent response to violence against children
(Pollock, 1983). Between 1785 and 1860, The Times reported 385 such prosecutions, of which masters of apprentices account for eleven per cent, the remainder
being parents. Charges included murder, physical assault, sexual assault, incest
and neglect. The earliest case reported, a 1787 prosecution of a guardian whose
violence profoundly deformed a three-year-old child, was considered “one of the
most savage transactions” ever heard, and “very rare” (Pollock, 1983: 93).
Mothers had power (or rights) only over illegitimate children, a doctrine questioned by Locke (1690: 6, 52): “Paternal power” situates “the power of parents
over their children wholly in the father, as if the mother had no share in it;
whereas if we consult reason or revelation, we shall find she has an equal title,
which may give one reason to ask whether this might not be more properly called
parental power?” Rejecting potestas as “an absolute, arbitrary dominion of the
father”(para 64), Locke links it to the performance of parental duty: “The power,
then, that parents have over their children arises from that duty which is incumbent on them, to take care of their offspring” (para 58). “[S]o little belongs to the
father by any peculiar right of Nature, but only as he is guardian of his children,
that when he quits his care of them he loses his power over them, which goes
along with their nourishment and education” (para 65). “The bare act of begetting” gives the father no power “if all his care ends there”. As the mother has given
the child “the materials and principles of its constitution”, her power is at least
equal to that of the father. “[P]aternal or parental power is nothing but that
which parents have over their children, to govern them for their children’s good,
till they come to the use of reason”. It is not the basis of “the ends and jurisdictions of that which is political”, as earlier philosophers claimed (Locke, 1690: 15,
170). Parental power, for Locke, is purely fiduciary.
Blackstone disagrees. In his Commentaries on the Law of England (1769:
I, 16, 1), he recognizes the father’s power as absolute “(for a mother, as such, is
entitled to no power but only to reverence and respect)”. The father’s empire
extends to every aspect of the child’s life. It does not depend on the exercise of
paternal duty, nor is it “enjoined by any municipal laws”. Blackstone variously
describes paternal power as deriving from natural law, voluntary obligation, natural duty, nature, reason, and “an insuperable degree of affection”.
The sole restriction on Chancery jurisdiction to intervene in all cases of cruelty
and gross misconduct affecting children is “want of means”, Lord Eldon explains
(Wellesley, 1827: 1083). Equity “belongs to the King, as parens patriae, having
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the care of those who are not able to take care of themselves” but “the court must
have property in order to exercise this jurisdiction [and] this court has not the
means of acting except where it has property to act upon. It is not, however, from
any want of jurisdiction that it does not act, but from a want of means to exercise
its jurisdiction, because the court cannot take upon itself the maintenance of all
the children in the kingdom.” The House of Lords observes that equitable
jurisdiction extends “as far as necessary for protection and education” (Wellesley,
1828). The vulgar and dissolute Wellesley was denied custody of his children, in
the care of maternal relatives since his estranged wife’s death. Even so, the common law presumption in favour of paternal custody remained. In 1836, Chief
Justice Denman returned three girls under six to their father, despite his known
cruelty and his domicile with a woman not his wife (R. v. Greenhill, 1836). The
custody of a legitimate child below the age of discretion belongs to the father,
Justice Denman noted, and “when a father has the custody of his children, he is
not to be deprived of it except under particular circumstances”. In this case, “there
is nothing proved against [Mr. Greenhill] which has ever been held sufficient
ground for removing children from their father.” Most important, “any doubts
left on the minds of the public as to the right to claim the custody of children
might lead to dreadful disputes, and even endanger the lives of persons at the
most helpless age.” The mother was jailed for contempt (Shanley, 1993). Her
situation attracted wide public sympathy, including that of her husband’s lawyer,
Thomas Noon Talfourd. The poet Caroline Norton, whose estranged and violent
husband had absconded with the children, argued for reform in her pamphlets
“The Natural Claim of a Mother to the Custody of her Children as Affected by
the Common Law Rights of the Father” (1837) and “A Plain Letter to the Lord
Chancellor on the Law of Custody of Infants” (1839). Talfourd, a Member of
Parliament and friend of Norton, pressed for statutory reform (Chedzoy, 1992).
The 1839 Custody of Infants Act (“Talfourd’s Act”) empowered Chancery to
grant custody of children under seven to the mother if adultery had not been
proven against her, and access to older children in paternal custody. The court was
not to be constrained by the common law presumption of paternal custody. An
1873 amendment extended maternal custody to children under 16. The 1873
Judicature Act extended jurisdiction over matters of equity beyond Chancery to
all courts of superior jurisdiction. The Act made clear the superiority of equity
over law. Paternal custody, a question of law, was no longer absolute.
Reform continued. The 1866 Guardianship of Infants Act empowered
Chancery to make “such order as it may think fit regarding the custody of [an]
infant and the right of access thereto of either parent, having regard to the welfare
of the infant, and to the conduct of the parents, and to the wishes as well of the
mother as of the father” (section 5). Parental merits were to be subsumed under
the interests of the child. This gave rise to the best interests of the child standard
in the next century. Two centuries after Locke, paternal rights became parental
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rights, which must yield to the parens patriae power of the state. The means available to the state for the protection of all children, and the apprehension of children into state care, increased with the rising awareness of intrafamilial child
abuse in the 1970s and 1980s (McGillivray, 1990, 1992). In exercising its “paternal jurisdiction” over the welfare of the child, Lord Esher M.R. explains, the
court acts for the Crown as “guardian of all infants as if it were the parent of the
child, thus superceding the natural guardianship of the parent” (R. v. Gyngall,
1893: 239). Parens patriae overrides “the views of those in charge of children,
whether a parent, a minister of the Crown, government official or otherwise”
(Rolands, 1983: 321). It is “not derivative from the parents’ rights and responsibilities, but derives from, or is the delegated performance of the duties of the
Crown to protect its subjects and particularly children” (Re R, 1991: 186).
The provisions of the 1886 Guardianship of Infants Act were legislated in
Ontario as the 1877 Guardianship of Minors Act. The 1893 Ontario Prevention
of Cruelty Act empowered Children’s Aid Societies, recently formed out of the
Humane Societies, to remove ill-treated children from parental custody for foster
care or institutional placement. Other provinces followed suit (Chunn, 1992). In
the following century, the judicial terminology of the welfare of the child was
replaced by the best interests of the child. The Divorce Act is perhaps the first
Canadian statute to use the best interests standard in its pursuit of gender neutrality (Divorce Act, 1985: 16(8), 16(10), 17(5); Boyd, 2003). The standard is
established in child and family services legislation in all provinces. Parens patriae
is now primarily a creature of legislation, the bulk of it aimed at children. With
the recognition of the rights of children, and in particular the right to judicial
consideration of their best interests, what is the status of parental rights in custody and access?
III. Parental rights and child custody — “a shift of emphasis”
In rejecting a suit for alienation of affection brought by a father against his former
wife for barring access to the children, Chief Justice Dickson writes for the
Supreme Court that the tort has fallen into disfavour and the Divorce Act leaves
no room for equity (Frame, 1987). Justice Wilson, dissenting, fashioned an equitable remedy based on the mother’s breach of her fiduciary duty to the children,
and tolled the death of parental rights. Access “has become the child’s right,” she
writes (para 51), and “it would be a regressive step to recognize today a cause of
action in the parent based on an outmoded concept of parental rights in children
[and] in the face of the shift in emphasis from parental rights to children’s rights”.
Historically, “fathers had an almost absolute common law right to the custody of
their children to the total exclusion of mothers.” In light of later statutory developments, “it can be said with some assurance that the concept of “parental rights”
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has fallen into disfavour. Parental responsibilities yes, but rights no.” The only
source of a parent’s access claim is a court order based on the child’s best
interests.
In a case decided the following year, Justice L’Heureux-Dubé writes for the
court, “Before the Family Services Act, it was necessary, in order to divest a person
of all parental rights, to show that by reason of moral turpitude or abdication of
parental rights, the person had forfeited his or her rights to the child” (New
Brunswick, 1988: para 4). Then, “the best interests of the child was read subject
to the right of the natural parents to custody of their child” but this has shifted
“from a consideration of parental rights towards that of the child’s welfare” (para
11). She refers to “parental claims” rather than “parental rights”. Canada signed
the Convention on the Rights of the Child the following year. Article 3(1) establishes the best interests standard: “In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a
primary consideration.” Article 9 draws on the standard in cases of child-parent
separation. Article 18 gives primary responsibility to parents and legal guardians
for the child’s upbringing and emphasizes that their “basic concern” will be the
child’s best interests. The standard is also iterated in Articles 20, 21, 37 and 40.
The scope of the best interests standard was considered in the context of parental rights in a 1993 case in which a child complained that her father, separated
from her mother and a recent convert to the Jehovah’s Witnesses, forced her to
participate in religious work (Young, 1993). The Supreme Court upheld the decision to remove a restraining order based on his undertaking not to indoctrinate
the child. Justice L’Heureux-Dubé for the majority observes, “Since the 19th
century, along with a gradual move toward equality of the sexes in custody presumptions, the focus has shifted from the rights of the parents to those of the
child” (n.p.). The child’s testimony might be “a sufficient evidentiary basis on
which to restrict access.” Its companion case involved similar facts but the court
upheld the restraining order (P.(D.), 1993). Justice L’Heureux-Dubé notes that
“in the fifties, the courts moved towards recognizing the rights of children over
those of parents [and the] rights of children became much more significant in the
seventies. The child should be the focus of the court’s concerns as it is the child’s
rights which are at issue, not those of the parents.”
The rights of parents came to the forefront in a protective apprehension case
decided two years later, in which the parents had refused blood transfusion of
their infant daughter on religious grounds (B. (R.), 1995; Part VI, below). Parents
“have a privileged role” which “translates into a protected sphere of parental
decision-making”, Justice LaForest writes for the majority (318). If they have
responsibilities for children, then “they must enjoy correlative rights to exercise
them” (372). This is a “liberty interest and not a parental right tantamount
to a right of property in children.” Except in cases of “demonstrated neglect or
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unsuitability”, the common law presumes “that parents should make all significant choices affecting their children, and has afforded them a general liberty to do
as they choose.” This comment conflates privilege with the US doctrine of protected liberty interests (Wilder, 2002: 220; Hubin, 1999). Justice LaForest’s suggestion that parental decision-making be given Charter protection has not been
taken up in the law. In a protective apprehension case decided five years later,
Justice L’Heureux-Dubé offers a somewhat more modest view: “Parents must be
accorded a relatively large measure of freedom from state interference to raise
their children as they see fit” (Winnipeg, 2000: para 72).
In a suit for alienation of affection brought by the family of a child in a state
treatment facility, Justice Abella for the court finds no parental right that could
support the claim (Syl Apps, 2007). Statutory references to parents and family “are
not stand-alone principles, but fall instead under the overarching umbrella of the
best interests of the child. Those provisions are there to protect and further the
interests of the child, not of the parents” (para 46). “The result they seek to restore
is the child, not the family” (para 64). The judgment refers to “parental claim”,
“wishes of a parent”, “interests of the parent” and “what is best … for the parent”
but not “parental rights”.
Parental rights in custody disputes are now to be seen as no more than claims
or wishes. What is best for the parent is subordinated to the child’s best interests,
which must be considered in all matters affecting the child, according to the
Convention, and in custody and divorce matters, according to Canadian family
and child protection law. “Best interests” is also the standard governing all fiduciary relationships, which include the parent-child relationship. What is the fiduciary standard for parents in intact families and for state-licensed actors in loco
parentis?
IV. Fiduciary duty and the best interests of the child
Trust lies at the heart of equity. The fiduciary must act with utmost good faith
and loyalty, and in the best interests of the beneficiary of the relationship. The
governing standard of all fiduciary relationships is the best interests standard. The
fiduciary duty of the state to children as is embedded in the Convention. Article
3(1) requires that the best interests of the child be “a primary consideration” in
“all actions concerning children undertaken by the state”. Parens patriae jurisdiction is now expressed primarily, but not solely, through social legislation
(McGillivray, 2004). Parental fiduciary duty is also embedded in the Convention.
Article 5 requires that parents promote the child’s rights. Article 18 recognizes the
“primary responsibility” of parents “for the upbringing and development of the
child”. Their “basic concern” must be “the best interests of the child”. The best
interests standard, then, governs parent-child and state-child relationships.
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The Supreme Court considered the scope of parens patriae in two decisions
involving adults. In denying a mother’s application for the non-therapeutic sterilization of her mentally-disabled adult daughter, Justice LaForest writes for the
court: “Wardship is … a device by means of which Chancery exercises its parens
patriae jurisdiction over children.” (Eve, 1986: para 35). While most cases falling
under parens patriae jurisdiction involve the care of children, “wardship cases
constitute a solid guide to the exercise of the parens patriae power even in the case
of adults” (para 36). Referring to Wellesley (1828), the court observes that “the
situations in which the courts can act where it is necessary to do so for the protection of mental incompetents and children have never been, and indeed cannot,
be defined ” (para 43). “I can find nothing in the authorities … to suggest that
there is any limitation in the theoretical scope of this jurisdiction; or, to put it
another way, that the jurisdiction can only be invoked in the categories of cases
in which it has hitherto been invoked … That list is not exhaustive. On the contrary, the powers of the court in this particular jurisdiction have always been
described as being of the widest nature. That the courts are available to protect
children from injury whenever they properly can is no modern development”
(para 44, qtg. Re X, 1975: 699). The court can do only “what is necessary for the
benefit and protection of persons under disability” (para 82). The mother’s concern that she would be required to raise a child born to her daughter was insufficient justification for sterilization. In overturning a decision that the protective
apprehension of a young solvent-addicted pregnant woman was justified under
parens patriae jurisidiction, Justice McLachlin for the court states that fetal protection is a legislative matter beyond judicial reach (Winnipeg, 1997). The courts
are confined “to incremental change … where the revision is major and its ramifications complex, the courts must proceed with great caution” (para 18). The
court did not consider whether parens patriae might extend to the protection of
the woman herself, regardless of the fetus.
That year, the court upheld the ruling of an education tribunal that a specialneeds child be removed from an integrated classroom to a special-needs program
(Eaton, 1997). Decision-makers must remember that the equality rights of young
children and children unable to communicate are exercised on their behalf by
adults having authority over the child, usually the parents, Justice Sopinka writes
for the court (para 77). Decisions affecting a child’s equality rights must be made
from “a subjective, child-centred perspective, one which attempts to make equality
meaningful from the child’s point of view as opposed to that of the adults in his or her
life” (emphasis added; see Part V below). The accommodation chosen for the
child must be shown to be in the child’s best interests. “For older children and
those who are able to communicate their wishes and needs, their own views will
play an important role in the determination of best interests.” Where children are
incapable of choosing or have “very limited means of communicating their
wishes”, the decision-maker must rely on other evidence, but “the parents’ views
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33
of their children’s best interests is not dispositive of the question” (para 79, citing
E., 1986 and B. (R.), 1995, above). The Eaton test for judging children’s equality
rights in the context of their best interests is a high point in Supreme Court
jurisprudence.
The child’s right to have her best interests considered in matters affecting her is
the determining factor in an appeal from a deportation order against a mother of
four Canadian-born children (Baker, 1999). Justice L’Heureux-Dubé writes for
the majority: “[B]ecause the reasons for this decision do not indicate that it was
made in a manner which was alive, attentive, or sensitive to the interests of
Ms. Baker’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the
legislation, and must, therefore, be overturned” (para 73). Decision-makers
“should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them” (para 75). In any situation “where the interests of children are minimized, in a manner inconsistent
with Canada’s humanitarian and compassionate tradition and the Minister’s
guidelines, the decision will be unreasonable.” Baker is the high point of Supreme
Court jurisprudence on the role of the best interests principle.
The parens patriae jurisdiction of the state is the default for failed parenting. It
is parents who bear the primary fiduciary duty to children. Justice Wilson
describes the fiduciary relationship as one which gives the fiduciary a discretion
or power which may affect legal or practical interests of the beneficiary (Frame,
1987: para 60). The beneficiary is, for this reason, “peculiarly vulnerable to or at
the mercy of the fiduciary holding the discretion or power.” On the fiduciary
requirements of the doctor-patient relationship, Justice McLachlin writes for the
court, “The essence of a fiduciary relationship is that one party exercises power on
behalf of another and pledges himself or herself to act in the best interests of the
other” (Norberg, 1992: 272). That year, the court issued its decision in a groundbreaking suit brought by a daughter against her father for his years of sexual abuse
(M.(K.), 1992). Justice LaForest writes for the court, “It is intuitively apparent
that the relationship between parent and child is fiduciary in nature [as] society
has imposed upon parents the obligation to care for, protect and rear their children” (para 67). In this case, the “essence of the parental obligation …is simply to
refrain from inflicting personal injuries upon one’s child”. The Supreme Court
has recognized a fiduciary duty in parents in financial matters — to avoid harmful actions resulting from abandoning or abusing their position of trust, to refrain
from exercising undue influence — and to refrain from inflicting personal injuries on the child (K.L.B., 2003: para 42). Lower courts in Canada have recognized a parental duty “to look after” the best interests of the child and the British
Columbia Court of Appeal asserts that “a parent’s duty certainly involves a duty
to act in the child’s best interests” (B.(P.A.), 1997). The Supreme Court disagrees.
In recent cases, the court narrowed the parens patriae role of the state and the
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fiduciary duty of parents, and lowered the fiduciary standard from “best interests
of the child” to “interests of the child”.
In a lawsuit brought by four siblings under state guardianship who were severely
injured by their foster parents, Chief Justice McLachlin writes for the court,
“Parents should try to act in the best interests of their children. This goal underlies a variety of doctrines in family law and liability law. However, thus far,
a failure to meet this goal has not itself been elevated to an independent ground
of liability at common law or equity” (K.L.B., 2003: para 44). Although parents
stand in a fiduciary relationship to children, the best interests of the child is not
their concern. The court’s rationale is pragmatic. The obligation to consider the
child’s best interests is result-based rather than act-based. Breach of fiduciary duty
requires fault. If fault cannot be identified at the time of the act, there can be no
liability and therefore no duty. “The best interests of the child” is neither a justiciable standard nor a workable standard for parents seeking to avoid liability. It
suggests no “particular courses of conduct” nor points to which action will
advance the child’s best interests. Different parents have different ideas, all of
which may be reasonable. Resources, energy, abilities and the competing needs of
other children may limit what parents can do for a child. Although “a laudable
goal” and “a guiding objective”, the best interests principle is neither a legal nor
an equitable obligation (para 47). “The list of parental fiduciary duties is not
closed. But it does not include a broad and unspecified duty to act in the child’s
best interests” (para 48). “The duty imposed is the duty to act loyally, and not to
put one’s own or other’s interests ahead of the child in a manner that abuses the
child’s trust” (para 49). That is all.
The case addressed state liability for injuries suffered in foster care. At issue in
its companion cases were the liability of a school board for a school janitor’s sexual assault of a child in care (G. (E.D.), 2003) and the liability of the Superintendent
of Child Welfare for the sexual assault of a child in foster care (M.B., 2003). By
statute, the Superintendent must report to the Minister “any children’s aid society
or foster home that is not in the best interests of a child in its custody or care”,
Justice McLachlin notes, and this is a non-delegable duty “to ensure that certain
quite specific actions are performed in connection with the children’s care” (M.B.,
2003: para 17). Nothing in the Act “suggests that the Superintendent stands
under a general non-delegable duty to ensure that no harm comes to children
through the abuse or negligence of foster parents”. The court finds non-delegable
duty of the state to act in the best interests of the child. The state, then, has no
fiduciary duty to a child once it has delegated that duty, however inadequately,
unless specified by legislation. In a reference case on state liability for abuse in a
private children’s home between 1928 and 1976, the court set another limit
(Reference re Broome, 2010). Noting that the courts have “certain powers to step
into the shoes of the parent and make orders in the best interests of the child”
(para 49) and that parens patriae is a “protective jurisdiction which confers the
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35
power to act”, Justice Cromwell for the court observes that it “is not generally
thought of as a power of the executive branch of government. While it is sometimes spoken of as a duty on the part of the Crown, no authority has been presented for the proposition that the parens patriae doctrine imposes a positive duty
to seek out and address cases of potential child abuse” (para 50). State failure to
monitor an institution to which it has assigned children, it would seem, carries
no liability. As these decisions contradict centuries of jurisprudence and shrink
state responsibility for children in care, it may be thought that the Supreme Court
is adverting to the Wellesley (1827) excuse of lack of means.
Despite Justice McLachlin’s declaration that the essence of fiduciary duty is to
act in the best interests of the other (Norberg , 1992) and despite the primacy of
the best interests principle in the Convention and its ubiquity in Canadian legislation, Justice McLachlin for the court substituted a lesser standard for parents
and the state and reduces it further, to a maxim: “The maxim that parents should
act in their child’s best interests may help to justify particular parental fiduciary
duties, but it does not constitute a basis for liability” (G. (E.D.), 2003: para 23).
The focus of parental fiduciary duty is not “on achieving what is in the child’s best
interest”. The focus is “on specific conduct that causes harm to children in a manner involving disloyalty, self-interest, or abuse of power — failing to act selflessly
in the interests of the child. This approach is well grounded in policy and common sense.” The rationale offered is unsatisfying. Fiduciaries are routinely faced
with pragmatic quandaries over where the best interests of the beneficiary lie.
“Best” does not imply “only”. It is in the best interests of the child that she attend
school. Where there is a choice of acceptable schools, attending any one will be
in her best interests. The result of a decision is not always foreseeable and breach
is always judged after the fact, on the basis of foreseeability. It is not at all clear
why the Supreme Court prefers the lower — and equally indeterminate, unworkable and non- justiciable — standard of avoiding “specific conduct that causes
harm to children”. The court gives no good reason why the best interests standard
is workable in all fiduciary relationships except those in which children are beneficiaries, and parents and the state are fiduciaries.
Where a law threatens the security of the person, it must accord with the principles of fundamental justice, a category that includes such principles as the right
to a hearing and the right to make full answer and defence, and is never closed. Is
the principle that the best interests of the child be considered in every action
affecting the child, a principle of fundamental justice? The question was raised in
Canadian Foundation for Children, Youth and the Law v. Canada (2004; Part V,
below), decided the following year. Argument in the case was heard after the
Supreme Court heard K.L.B. and its companions, but before it released judgment, meaning that the parties to Canadian Foundation did not have the advantage of the court’s articulation of the best interests standard. The standard is “an
established legal principle in international and domestic law” and explicit in such
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federal statutes as the Immigration Act, the Youth Criminal Justice Act, and the
Divorce Act, while provincial family law statutes “are saturated with references to
the ‘best interests of the child’ as a legal principle of paramount importance”,
Chief Justice McLachlin writes for the majority (Canadian Foundation, 2004:
para 9). Since the principle is not “capable of being identified with some precision”
(para 11) and the child’s best interests can be subordinated to other concerns,
there is no “consensus that the principle is vital or fundamental to our societal
notion of justice” (para 10). Its application “is inevitably highly contextual and
subject to dispute”. It is not “a principle of fundamental justice setting out our
minimum requirements for the dispensation of justice”. It is “a legal principle
that carries great power in many contexts but “not a principle of fundamental
justice”.
Given the ubiquity of the principle, the lack of consensus rationale offered by
the court is not compelling. That the principle can be subordinated to other principles of fundamental justice is true of all such principles, most of which carry far
less statutory authority. In a later case on the onus of proof in the transfer of
youth to adult court, the Supreme Court agreed that the “presumption of diminished moral blameworthiness or culpability” of youth is fundamental to the operation of the legal system and is, therefore, a principle of fundamental justice
(R. v. D.B., 2008: para 41; Milne, 2009). The majority cites the statutory regime
for youth crime, societal consensus and Article 40 of the Convention in support.
The minority argues that this is not sufficient, noting that the frequent reform of
young offender legislation reflects a “response to the public’s request for a more
punitive approach” (para 136). Without “societal consensus that the presumption
of youth sentences is vital to our notion of justice”, it is “not a principle of fundamental justice” (para 138). In naming these principles, the best interests of the
child has at least an equal claim (Carter, 2010).
That parents should support children has long been seen as a moral duty flowing from the parent’s choice to engender the child. Not until the mid-second
century did the pater familias have an enforceable duty (Frier and McGinn, 2004:
227). Judicial enforcement, the emperor Septimius Severus observed in 197, does
only that which family members do of their own free will, and mothers as well as
fathers can be ordered to support a child (236). For Ulpian, a jurist under Severus,
the duty of maintenance “derives from fairness (aequitate [equity]) and from
affection for blood relatives … if children (ask) that they be maintained by a parent, a judge will investigate the matter.” For Blackstone (1769: 1, 16, 435), “The
duty of parents to provide for the maintenance of their children is a principle of
natural law [as] they have entered into a voluntary obligation, to endeavour, as far
as in them lies, that the life which they have bestowed shall be supported and
preserved. And thus the children will have a perfect right of receiving maintenance from their parents.” Blackstone, unlike Severus, exempts mothers. In marriage, the father has a natural obligation to support his children “whereas, in
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37
promiscuous and illicit conjunctions, the father is unknown; and the mother
finds a thousand obstacles in her way; – shame, remorse, the constraint of her sex,
and the rigor of laws; – that stifle her inclinations to perform this duty: and
besides, she generally wants ability.” The father’s obligation, although “voluntary”, is enforced by “all well-regulated states”. Blackstone limits the duty of support to children who “are impotent and unable to work, either through infancy,
disease, or accident” and to providing only “necessaries.”
The Supreme Court deduced from the parental duty of support a right of the
child to support commensurate not with necessaries but with parental income
(D.B.S., 2006). “Combined with an evolving child support paradigm that moves
away from a need-based approach, a child’s right to increased support payments
given a parental rise in income can be deduced.” (para 131). The duty arises from
common law and is not dependent on a court order, which merely “enforces an
obligation that should have been fulfilled already” (para 68). “No child support
analysis should ever lose sight of the fact that support is the right of the child,”
Justice Bastarache writes for the majority. “Where one or both parents fail to vigilantly monitor child support payment amounts, the child should not be left to
suffer without a remedy … courts are not to be discouraged from defending the
rights of children’ (para 60). Justice Abella for the minority terms the duty of support “a fiduciary one. It is a parental obligation that creates a right in the child.
The recognition that child support is the right of the child, not of the parent, is
not disputed” (para 157).
If support is the right of the child, does a parent’s conduct in securing that
right matter? The court split on the question. Four judges thought that blameworthy parental conduct — unreasonable delay or failure to inquire by the payee
parent, bullying or falsification of information by the payor — should factor into
the accounting. Three disagree: “Because the child’s right to support varies with
the change [in income], it cannot, therefore, be contingent on whether the recipient parent has made an application on the child’s behalf or given notice of an
intention to do so” (para 162). The right “belongs to the child regardless of how
his or her parents behave” (para 169). Conduct is “not germane” as the obligation
“fluctuates with parental income, not with parental misconduct” (para 166).
Parents “know what their obligations are, when they arise, and when they may be
varied”, giving the law its requisite certainty (para 172). The majority states that
courts should be cautious in penalizing children for a parent’s delay, but they can
do so. This decision further lowers the fiduciary bar set for parents.
If the best interests of the child is neither a principle of fundamental justice nor
the fiduciary standard of either parent or state, it is alive and well as the judicial
and legislative standard in assessing parental claims to custody. In Syl Apps (2007,
above), Justice Abella writes for the court, “This Court has confirmed that pursuing and protecting the best interests of the child must take precedence over the
wishes of a parent” (para 45). The statutory phrase “integrity of the family unit”
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must be interpreted “not as strengthening parental rights, but as ‘fostering the
best interests of children’.” The value of an intact family unit is to be “evaluated
in contemplation of what is best for the child, rather than for the parent.”
Whether a parent fiduciary is held to the standard of the best interests of the
child, or just her interests, parental rights over children are a thing of the past.
Maybe. Partly. Paternal power encompassed custody, control and corporal punishment. If parental rights no longer exist, if all such rights belong to the child,
how do we account for recent Supreme Court rulings that the paternal right of
chastisement offends no right of the child, and that the state ultimately controls
the body and beliefs of the mature child?
V. The power of chastisement
Article 19 of the Convention requires the state to protect the child “from all
forms of physical or mental violence, injury or abuse”. Section 43 of the Canadian
Criminal Code states, “Every school teacher, parent or person standing in the
place of a parent is justified in using force by way of correction toward a pupil or
child, as the case may be, who is under his care, if the force does not exceed what
is reasonable in the circumstances.” This law has come under heavy criticism from
the international community. The United Nations Committee on the Rights of
the Child told Canada in 1995 that “the physical punishment of children in
families [should] be prohibited”. In 2003, the Committee expressed “deep concern” that Canada has taken “no action to remove section 43 of the Criminal
Code” and called for legislation “removing the authorization of “reasonable force”
in disciplining children and prohibiting all forms of violence against children,
however light” (para 32-33).
In the latter days of the Roman Empire, a series of imperial edicts restricted
potestas. In 365, co-emperors Valentinian and Valens issued an edict on domestic
correction which prohibited “extremely severe castigation” and limited its use to
minors (Justinian, 535: 270; Part II above; McGillivray, 1998). An early annotation to the edict states, “The motive: for example, flogging, which goes unpunished if administered by a magistrate or parent, because it is inflicted for the
purpose of correction not for the sake of insult; but it is punished when someone
has been beaten up in anger by an outsider.” This entered the common law
through Bracton’s text on English law as the defence of correction (Bracton,
c.1235: 2, 299), available to masters of prisons, ships, colonies, schools, apprentices, servants, wives and children (McGillivray, 1998; 2010). Eirenarcha,
Lambarde’s 1581 handbook for justices of the peace, sets out the sources of the
power of chastisement: “some are allowed to have privately, a natural, and some a
civile power (or authoritie) over others, so that they may be excused themselves if
but (in reasonable manner) they correct and chastise them for their offenses”
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(McGillivray, 1998). Blackstone gives the Roman defence a more modern spin:
“The ancient Roman laws gave the father a power of life and death over his children … The power of a parent by our English laws is much more moderate; but
still sufficient to keep the child in order and obedience. He may lawfully correct
his child, being under age, in a reasonable manner; for this is for the benefit of his
education” (Blackstone, 1769: I, 16, 1). His power ends when the child attains
“the empire of reason”.
The scope of the power of chastisement was put to the test in 1860. A schoolmaster armed with the father’s permission and a heavy brass-tipped stick administered a two-hour beating to a “dull boy” of twelve, to instil learning (R. v. Hopley,
1860). The boy died. In sustaining the manslaughter conviction, Chief Justice
Cockburn defined the limits of correction: “By the law of England, a parent or a
schoolmaster … may for the purpose of correcting what is evil in the child inflict
moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable.” Punishment inflicted in “passion” or
“rage” or “immoderate or excessive in its nature or degree” or “protracted beyond
the child’s powers of endurance, or with an instrument unfitted for the purpose
and calculated to produce danger to life or limb” will be unreasonable.
The defence of moderate correction was codified together with other defences
to assault by Lord Blackburn, Chair of the English Imperial Draft Code
Commission, and enacted without discussion in the 1892 Canadian Criminal
Code (McGillivray, 2010). In the 1955 renovations to the Code, masters and
apprentices were removed. With this exception, the law has not changed since the
Roman edict of 365. From the time of codification, Canadian courts have failed
to sustain a coherent jurisprudence (McGillivray, 1998). Many resorted to a judicial childhood test. In overturning a father’s conviction for assault, Justice
O’Sullivan writes for the Manitoba Court of Appeal, “The discipline administered to the boy in question in these proceedings was mild indeed compared to
the discipline I received in my home. There were times when I thought my parents were too strict, but in retrospect I am glad that my parents were not subjected to prosecution or persecution for attempting to keep the children in my
family in line” (R. v. K.(M.); McGillivray, 1993). In the first case on the defence
to come before the Supreme Court, Justice Dickson for the court cites Blackstone
in denying the defence to an institutional care worker who repeatedly struck a
resident with a metal spoon (Ogg-Moss, 1984). Twenty years later, in the second
case to reach the court, Blackstone was vigorously argued by the Attorney-General
of Canada in the defence of section 43.
In 1998, The Canadian Foundation for Children, Youth and the Law sought a
declaration in the Ontario Superior Court of Justice that section 43 offends the
child’s right to the equal benefit and protection of the law guaranteed by section
15 of the Charter, to security of the person under section 7, and to freedom from
cruel or unusual punishment under section 12 (Canadian Foundation, 2004;
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McGillivray, 2004b,; McGillivray and Durrant, 2006). The Foundation also
relied on Canada’s obligations under Articles 3, 18, 19 and 28 of the Convention.
Evidence was given by way of affidavit. The court of first instance, the Ontario
Court of Appeal and the Supreme Court of Canada dismissed the application. In
determining that the law offends no right of the child, Chief Justice McLachlin
for the majority of the Supreme Court sets limits on the defence that recall Hopley
(1860), although no caselaw is cited. The defence permits only “minor corrective
force of a transitory and trifling nature” (Canadian Foundation, 2004: para 40).
Force will be unreasonable if used with children under two or “teenagers”, if it is
“degrading, inhuman or harmful” or if it consists “of the use of objects or blows
or slaps to the head”. Teachers cannot use force “merely as corporal punishment.”
The force must be corrective, ruling out frustration, temper and “abusive personality”. The test is objective, based on the circumstances, but the “gravity of the
precipitating event” is irrelevant.”
Parliament’s decision “declining to bring the blunt hand of the criminal law
down on minor disciplinary contacts reflects the resultant impact this would have
on the interests of the child and on family and school relationships”, Chief Justice
McLachlin writes. “Parliament’s choice not to criminalize this conduct does not
devalue or discriminate against children, but responds to the reality of their lives by
addressing their need for safety and security in an age-appropriate manner” (para 51,
emphasis added). It “is not grounded in devaluation of the child, but in a concern
that to do so risks ruining lives and breaking up families — a burden that in large
part would be borne by children and outweigh any benefit derived from applying
the criminal process” (para 62).
The decision forces assault into a child protection mould by recasting the legislative purpose of section 43 as avoiding harm to children by criminalizing parents, thereby “ruining lives and breaking up families”, and as an “effort to educate”
(para 235). The opening paragraph sets the tone: “The issue in this case is the
constitutionality of Parliament’s decision to carve out a sphere within which children’s parents and teachers may use minor corrective force” (emphasis added). The
Chief Justice makes numerous references to the dangers of criminalizing corrective force. “The reality is that without s. 43, Canada’s broad assault law would
criminalize force falling far short of what we think of as corporal punishment,
like placing an unwilling child in a chair for a five-minute ‘time-out’” (para 62,
and see paras 19, 51, 60 and 62). Although the courts routinely consider historical, empirical, and jurisprudential evidence in Charter cases, adverting to such
evidence here would negate the pro-child legislative purpose imagined by the
Chief Justice. Hitting children is neither ameliorative nor harmless (Durrant et
al., 2004; Gershoff, 2002, 2008). For the courts, however, the risk of criminalizing parents hurts children more than hitting them. The decision reinvents
the limits of chastisement without reference to the history of the defence, empirical studies of the impact of physical punishment or the jurisprudence. These
omissions enable the majority to portray the defence as child-centred, thus
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circumventing the equality guarantees of the Charter, the Convention’s indictment of physical violence and the Convention Committee’s admonition that all
legalized forms of violence, however mild, offend the Convention. In this context, the Chief Justice notes, incorrectly, that the Convention does not “explicitly
require state parties to ban all corporal punishment of children” (para 33).
To say that “a central aspect of this objective is to protect children and families
from the intrusion of the criminal law”, Justice Arbour writes in dissent, is an
“impermissible” shift of legislative intent from parental rights to child protection
(para 235). “This is not merely a shift in the emphasis of the legislative objective
but a significant reclassification of it. At the time section 43 was passed, the objective of affording parents and teachers reasonable latitude was based in traditional
notions of children as property … aimed at protecting parents and teachers from
prosecution and not to protect children from the intrusion of the criminal law.
This alternate objective … attempts to portray a child-centred approach to section 43, which was clearly never the original intent of the legislator”.
Corporal punishment is “a throwback to old notions of children as property”,
Justice Deschamps writes in dissent (Canadian Foundation, 2004: para 226). The
law “perpetuates the notion of children as property rather than human beings
and sends the message that their bodily integrity and physical security are to be
sacrificed to the will of their parents, however misguided” (para 231). Children
suffer a “pre-existing disadvantage” in our society [and] their vulnerability was
entrenched by the traditional legal treatment of children as the property or chattel of their parents or guardians. Fortunately, this attitude has changed in modern
times with a recognition that children, as individuals, have rights” (para 235).
“But s. 43 also ensures the criminal law will not be used where the force is part of
a genuine effort to educate the child”, Justice McLachlin responds (para 59).
The majority found no infringement of the Charter’s equality guarantee.
Section 43 corresponds to the needs of children, does not offend their dignity, is
an effort to teach and avoids damage to children from the risk of criminalizing
their parents and teachers. In effect, this incorporates under section 15(1) the
“legitimate objective” requirement of section 1 of the Charter, Justice Binnie
writes in partial dissent. This reverses the onus of proof onto the claimant to show
that the law’s objective is not legitimate and relieves the government of its burden
of demonstrating proportionality and minimal impairment. The law violates the
child’s right to equal treatment under section 15, he concludes. He would justify
it under section 1: limiting the intrusion of the criminal law into the family is
a pressing and substantial objective, the defence is rationally connected to
that objective, and the child’s right is minimally impaired because section
43 allows the courts to calibrate closely the defence to the circumstances, the
child and the times.
A court “must do its best to take into account the subjective viewpoint of the
child, which will often include a sense of relative disempowerment and vulnerability”, the Chief Justice writes, but the legal test for discrimination does not
42
A. McGillivray / International Journal of Children’s Rights 19 (2011) 21–54
work for young children (para 53). The reasonable person with the attributes of
the claimant and in position of the claimant cannot be a child even if the claimant is a child, because “this test may well confront us with the fiction of the reasonable, fully apprised preschool-aged child. The best we can do is to adopt the
perspective of the reasonable person acting on behalf of a child, who seriously
considers and values the child’s views and developmental needs.” This directly
contradicts the Supreme Court’s earlier ruling that decisions affecting a child’s
equality rights must be made from “a subjective, child-centred perspective, one
which attempts to make equality meaningful from the child’s point of view as
opposed to that of the adults in his or her life” (Eaton, 1997: para 77, above).
Justice McLachlin cites Eaton not on equality, but on amelioration negating discrimination (para 94). The child as subject has been erased in order to effect the
reassertion of parental rights.
The Supreme Court’s preservation of an archaic relic of potestas is unpersuasively disguised by a very modern concern for the child. Section 43 does not
address the needs of children, nor does it have the benign purpose ascribed. It
addresses chastisement — battery intended to cause pain for the purpose of correction. In shifting the legislative purpose, the Supreme Court rejected the judicial and lay meaning of the law, a meaning retained for over sixteen centuries in
every part of the world touched by the edict of 365 and Justinian’s Corpus Juris
Civilis. The court’s unconvincing welfarist approach, its twisted reasoning, its
denial of the child’s right to live free of violence and its omission of jurisprudential, empirical and historical foundation have been widely denounced (cited,
McGillivray, 2010). Judges struggle with the new list of limits, with mixed success (McGillivray, 2010; McGillivray and Milne, 2010). The impact on agency
identification of physical abuse cases is nil (Durrant et al., 2009) and the public
seems as confused as ever (Durrant et al., 2008; Toronto Public Health, 2007).
The speaking child is now a “fiction”. The question of if, and when, a child will
be allowed to speak was considered by the Supreme Court five years later.
VI. The power of control and the right to be heard
Patria potestas is about paternal ownership of children, children as chattel. Central
to ownership is control — of religion, expression, education, emancipation,
inheritance and virtually every other aspect of the child’s life. Article 13 of the
Convention, like the Charter, protects the child’s rights to freedom of expression,
thought, conscience and religion. The Convention requires that states “assure to
the child who is capable of forming his or her own views the right to express those
views freely in all matters affecting the child, the views of the child being given
due weight in accordance with the age and maturity of the child.” Article 12
assures to a child “capable of forming his or her own views” the right to be heard
A. McGillivray / International Journal of Children’s Rights 19 (2011) 21–54
43
and the right to have her views given “due weight in accordance with the age and
maturity of the child”. Michael Freeman terms these participatory rights the
“linchpin” of the Convention (1994: 319). Hearing the child saves us from the
welfarist dark side of the best interests principle, where interests replace rights and
the child’s interests are displaced by those of the adult. Participatory rights
underscore the reality that children’s interests are inseparable from their rights.
A judicial approach based on participatory rights “operates both to reduce the
indeterminacy of the principle and to mitigate the potential for judges to substitute their own subjective or speculative preferences as to what amounts to a child’s
best interests,” John Tobin writes (2009: 592). “Importantly … it puts to rest the
claim made by the Chief Justice of the Supreme Court of Canada that the best
interests principle is incapable of ‘being identified with some precision’.” Under a
participatory rights model in which the child is heard by the courts, “the family
is not a site of exclusive and unfettered parental power” (Tobin, 2009: 587).
Freedom of religion has intersected with children’s rights in several cases coming before the Supreme Court (Young, 1993; P.(D.), 1993; B.(R.), 1995). Justice
LaForest for the Supreme Court denied parental rights in Frame (1987: 53) but
restored them in B.(R.) (1995: 381): “I note at the outset that it is the freedom of
religion of the appellants — Sheena’s parents — that is at stake in this appeal, not
that of the child herself. While it may be conceivable to ground a claim on a
child’s own freedom of religion, the child must be old enough to entertain some
religious beliefs in order to do so.” Further, “the right of parents to rear their children according to their religious beliefs, including that of choosing medical and
other treatments, is an equally fundamental aspect of freedom of religion.” There
is, it seems, a rights-void in an infant which must be filled by parental rights
(Carter, 2007: 479). Because “a parent’s freedom of religion does not include the
imposition upon the child of religious practices which threaten the safety, health
or life of the child,” the infant Sheena’s apprehension was upheld under section
1 of the Charter.
Justice Lamer for the minority took a child-centred view. “Sheena has never
expressed any agreement with … any religion, assuming any such agreement
would be effective (para 437). There is thus an impingement upon Sheena’s freedom of conscience which arguably includes the right to live long enough to make
one’s own reasoned choice … the child, due to parental beliefs, may not live long
enough to make choices”. Acts that categorically negate another’s freedom of
conscience or “override the s. 7 life and security interests of an infant” are not
protected as freedom of religion. This is surely correct. The decision has left the
law in some confusion. In a case involving the apprehension of two of four
surviving sextuplets for blood transfusion refused by their parents on religious grounds, Chief Justice Brenner of the British Columbia Supreme Court
(court of appeal) found that medical necessity either vitiated parental rights under
section 2(a) of the Charter, or justified the infants’ apprehension under section 1
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(M. (V.), 2008: para 96). But which? If an infant cannot assert rights without
help, and if Canadian Foundation overrules the Eaton test for the young child,
what of the mature child?
A school rule prohibiting weapons violated a Sikh pupil’s right to freedom of
religion, Justice Charron found for the majority of the Supreme Court (Multani,
2006). The kirpan, a small knife worn under the clothing, is not a symbol of
violence, the risk that Multani or another pupil would use it as a weapon is low
and there is no evidence of an incident in which the kirpan had been so used. In
upholding Multani’s right, the court notes only that the religious belief asserted
must be “sincere”. Where risk of harm is low, autonomy rights are easily recognized. What if the exercise of rights might lead to the child’s death?
The question was tested by A.C., a girl of nearly 15 with Crohn’s disease, who
was transfused without a hearing and against her will (A.C., 2009). Medical treatment of a competent person who does not consent is a battery (Malette, 1990).
A full psychiatric assessment showed that A.C. understood her medical condition, the nature of the treatment, existing treatment options and the consequences
of choice. But for a statutory scheme restricting medical decision-making for
children in care to those over 16, she would be a mature minor, emancipated
from parents and parens patriae. Section 25 of the Manitoba Child and Family
Services Act requires the consent of a child in care only if she is16 or older. An
objective best interests test applies to children in care under 16. In many jurisdictions in and outside Canada, the question of consent is determined by the common law mature minor doctrine (c.f. Gillick, 1986; Tobin, 2009). A.C.’s question
is the hard one for children’s rights.
Justice Abella for the majority of the Supreme Court upheld the Manitoba
provision. “The question is whether the statutory scheme strikes a constitutional
balance between what the law has consistently seen as an individual’s fundamental right to autonomous decision-making in connection with his or her body and
the law’s equally persistent attempts to protect vulnerable children from harm”
(para 30). To be compliant with the Charter, the law must take “sufficient
account” of maturity, using a “sliding scale of scrutiny” in which the under-16
child’s views become “increasingly determinative” commensurate with the severity of consequences and the child’s ability “to exercise mature, independent judgment” (paras 21-23). An extensive review of the jurisprudence shows that the
wishes of even a mature child will not dictate a “catastrophic” outcome (para 62).
A child’s rejection of treatment will be upheld only if this is consistent with her
best interests (para 69). While an objective standard for infants and young children is uncontroversial, “tension between autonomy and child protection is real,
often dramatic, and always painful” (para 83). Respecting and promoting the
maturing child’s autonomy is in her best interests. To divorce the best interests of
the child from the advancement of her autonomous claims endorses “a narrow, static and profoundly unrealistic image of the child and of adolescence”
A. McGillivray / International Journal of Children’s Rights 19 (2011) 21–54
45
(para 92). A “robust conception” giving the child’s choice a weight commensurate
with maturity is consistent with the Charter and the Convention. The Manitoba
statute does not violate the Charter, the court ruled, and A.C.’s apprehension was
in her best interests.
Justice McLachlin, with one other judge, agrees in the result but objects to the
analysis. The Manitoba statute is “a complete statutory scheme” displacing the
common law (para 123). Age is “a reasonable proxy for independence” (para
145). A law must create a disadvantage “by perpetuating prejudice or stereotyping” in order to offend the Charter’s equality provisions (para 150). Citing herself
in Canadian Foundation (“children are a highly vulnerable group”) and Justice
Deschamp in dissent on “pre-existing disadvantage” (para 152), she finds that, as
with section 43, “the distinction drawn between minors under 16 and over 16 is
ameliorative, not invidious” (para 153).
Justice Binnie strongly dissents. “The Charter is not just about the freedom to
make what most members of society would regard as the wise and correct choice.
If that were the case, the Charter would be superfluous” (para 163). The decision
treats the views and preferences of the child, however competent, “merely as
inputs into the assessment by a third party — the judge” (para 193). This creates
an irrebuttable presumption of incapacity. Can the state “impose a ‘best interests
of the child’ test when the judge accepts that the factual basis for it [lack of capacity] does not exist?” (para 208). The Manitoba Act violates section 2 of the
Charter, casts a legislative net so wide it imposes a legal disability based on “an
assumed developmental deficiency that does not exist”, violates section 7 autonomy and procedural fairness rights for no valid purpose and discriminates against
children under the age of 16 (para 222). Protecting children is a pressing and
substantial objective. The statutory provision is not rationally connected to that
objective. Its irrebuttable presumption of incapacity “has a disproportionately
severe effect on the rights of mature minors under 16 because they do not suffer
from the lack of capacity or maturity that characterizes other minors [and] are in
no such need of judicial control” (para 237).
A.C. resurrects the Roman law of doli capax, a sliding scale of capacity based on
intellectus, the power of legal speech attained at age seven , below which the child
is infantia; and the attainment of legal capacity based on the emergence of pubic
hair: the infant is incapable, the older child must be proven capable, the adolescent is presumed capable but can rebut this. Statutory line-drawing is appropriate
for criminal responsibility (Canada set the age at 12 in 1984). There is no empirical or legal reason to enact age-based distinctions between children who equally
demonstrate full legal capacity in making decisions regarding their own interests.
As the jurisprudence cited in A.C. shows, competent minors have not been
allowed to choose a readily preventable death. The right to a hearing is a mere
baby-step in rights. What counts is the right to be heard and the right to the full
benefit of the Charter.
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Justice Abella’s analysis presumes that litigation turns on whether a mature
minor’s decision should be allowed to stand. Litigation in jurisdictions which,
like Ontario, rely on capacity rather than legislative line-drawing, focuses on
whether the child has capacity, not on whether she should be allowed to exercise
it. In an earlier case on adult welfare rights, Justice McLachlin writes that “age is
not strongly associated with discrimination and arbitrary denial of privilege”
(Gosselin, 2002, para 31). “Age-based distinctions are a common and necessary
way of ordering our society. They do not automatically evoke a context of preexisting disadvantage suggesting discrimination and marginalization.” But they
do, where children are involved. A.C. wished to be faithful to her beliefs and to
be taken seriously. “Having someone else’s blood pumping through my veins,
stressing my body, caused me to reflect on how my rights over my body had been
taken away by a judge who did not care enough to talk with me”, she states in her
affidavit (Canwest, 2009). “That day, my tears flowed non-stop. Nothing can
properly describe how I was feeling and still feel today. I could liken it to being
raped and violated but even those words do not express my feelings strong
enough.” In denying the autonomy rights of a mature child with full decisionmaking capacity, the Supreme Court upheld the ancient paternal right of control,
exercised here under parens patriae jurisdiction. Despite the court’s attempt to
unite best interests with rights, A.C.’s rights were ultimately trumped by its view
of her best interests. The decision does not affect children outside Manitoba,
Manitoba children not in state care, and Manitoba children over 16 in state care.
The ruling reflects the tricky interrelationship of parental control, best interests
and children’s autonomy where religion is involved.
The Supreme Court has ruled that the law will not support harassment and
religious indoctrination of a child (Young, 1993; P.(D.), 1993; B.(R.), 1995; Van
Praagh, 1997). The court recognizes a parental right to teach religion to a child
until she is capable of deciding which of her parents’ religions she wishes to adopt
(P.(D.), 1993). This means less than it seems. The right violated in these cases
seems less the child’s than the (perceived) right of the opposing parent. The distinction between teaching and indoctrination is in the eye of the beholder. The
presumption that the child will wish to adopt the religion of either parent is problematic. The courts are not alone in privileging parental control of children’s religious beliefs. A “parental rights clause” amending the Alberta Human Rights Act
(2009, section 11.1(1), in force 1 September 2010) permits parents to remove
children from classes dealing with “religion, human sexuality or sexual orientation”. The Alberta Minister of Culture explains that the amendment
“acknowledge[s] the fact that parents have the ultimate right to determine a
child’s education” (Macdonald, 2009). As a matter of law, parents do not have
this “ultimate right” (Eaton, 1997).
If corporal punishment addresses children’s needs and vulnerability, as the
Supreme Court asserts in Canadian Foundation, then the door is open to justifying
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47
its use as a matter of a parent’s or even a child’s religious freedom. Acts of violence
against adults are not constitutionally protected but acts of violence committed
by parents against children has been given that protection. Section 43 “is a lightning rod for values associated with religion and authority, values which in a pluralistic society are far too diverse, vague and idiosyncratic to control the application
of the criminal law” (McGillivray, 1993: 132). “Conceptions of what is ‘reasonable’ in terms of the discipline of children, whether physical or otherwise, vary
widely, and often engage cultural and religious beliefs … and the relationship
between the rights of the parent and the rights of the child” (Justice Arbour, dissenting, Canadian Foundation, para 185). The court’s engagement with children’s
rights in A.C. seems peripheral to a more central message about judicial deference
to parental authority, a deference taken to the extreme in Canadian Foundation.
VII. Children’s rights, parental rights and the problem of touch
If parents do not have proprietary rights over children, then what entitles them to
do for and with children, that which others cannot? Is every parental touch an
assault without the protection of section 43, as the Supreme Court asserts? To
what sorts of rights does the Convention refer, in the phrase ‘rights and duties of
parents’?
The conflation of acts of violence with acts of care runs deep in the common
law. For Locke, punishment is a political power residing in “a magistrate over a
subject” and must be “distinguished from that of a father over his children”
(Locke,1690: 6, 1, 57). The father’s power, unlike that of the magistrate, is not
produced by “force and violence” whereby victory establishes “a foundation for
[the] setting of punishment”. “Chastising” is not “a prerogative of paternal powers” but instead is part of “nourishment and education”. Parents are restrained by
such “tenderness for their offspring that there is little fear that parents should use
their power with too much rigour”. Chastisement for Locke is linked with tenderness and nourishment. It differs in source and (somehow) in kind, from the
magisterial power of the lash.
In appealing his conviction for assault causing bodily harm, a father argued
that his infliction of severe injuries to a newborn, ending only with her apprehension at two months, were unintended consequences of his acts of care (R. v. A.E.,
2000). On this extreme set of facts, the Ontario courts constructed a common
law defence of acts of nurture. The trial judge ruled that “consent must be implied
when it comes to such things as feeding, burping, changing, and transporting the
child about from place to place. Clearly, the baby is not capable of doing those
things for itself, and even though those matters do involve the intentional application of force, consent is presumed, since it is for the good of the child and,
indeed, for the survival of the child”, citing Blackstone (qtd at para 25). Consent
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is not deemed where “wanton and reckless application of force … would result in
physical harm and danger to its health.” The Ontario Court of Appeal agreed.
“On the one hand, the law must protect children and those who are defenceless
from unwarranted bodily interference; on the other hand, persons engaged in
looking after a child must be protected from state interference when acting in the
best interests of the child” (para 29). That “an infant be deemed to consent to
applications of force by a parent done ‘for the good of the child and, indeed, for
the survival of the child’” is in the public interest. The force will be judged on the
objective standard of the reasonable parent and “the customary norms of parenting” (para 40). “Here, as in s. 43, the common law exception that allows a parent
to touch a child in order to care for the child both protects the parent and removes
a protection from the child. Because the exception interferes with the child’s
physical security and dignity, it is a narrow exception whose logic and rationale
rests on the child’s incapacity to care for himself or herself ” (para 53). No law is
cited. As in Canadian Foundation, the purpose of the defence is protecting parents from the risk of criminal charges.
The Criminal Code’s conflation of battery, the unconsented touching of the
person, with assault, the threat of battery, is indeed wide (Canadian Criminal
Code, section 265) but this posed little analytical difficulty for the courts prior to
A.E. and Canadian Foundation (R. v. Jobidon, 1991; McGillivray, 2010). The
equation of a child’s consent to being touched for acts of care with a child’s consent to corporal punishment is bizarre. One is necessary and a right of the child.
The other is neither. As A.E.’s conviction was upheld, the defence is obiter dicta.
The timing is of some interest. The court heard the A.E. appeal in May 2000,
handing down its decision in August and the Canadian Foundation appeal in July,
handing down its decision over a year later, in September 2001. A.E. is not cited
in Canadian Foundation, which simply conflates nurture with punishment. No
court has taken up the Ontario defence.
No presumption of consent is needed to justify parental touch. It is a privilege
and a correlative right based on necessity and flowing from fiduciary duty (cf
B.(R.), 1995: 372). Fiduciary duty, as the Convention states, includes nurture,
education and appropriate guidance in the child’s exercise of rights. Parental
touch may also be seen as an adjectival right, in the sense that it exists to accommodate the exercise of a core right. Here, the core right belongs to the child.
Among the fiduciary parent’s correlative and adjectival rights are the rights to
touch the child for acts of care and nurture, to represent the legal claims of a child
who is not a mature minor, and to notice and hearing where a child is suspended
from school, taken into police custody, brought before the courts or apprehended
by the state. The right of a parent to hearing and counsel where the state seeks
custody of a child is constitutionally protected, in recognition of the centrality of
the child-parent relationship to the child as well as the parent (New Brunwick,
1999). Perhaps for this reason, no other correlative right of the parent has received
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49
constitutional protection. It cannot be said that state intervention is about “limiting the constitutional rights of parents rather than vindicating the constitutional
rights of children,” as Justice LaForest states in B.R. (para 86), skirting dangerously close to giving parents a “constitutionally protected interest to raise children as they see fit”. The constitutionally-protected rights at the heart of the
matter belong to the child. The “rights and duties of parents” in the Convention
do not refer to proprietary rights in the child but to rights that are correlative to
fiduciary duty, in recognition of the privileged position of parents in the lives of
children. The sphere of privilege which allows parents to do that for children
which others cannot is not constitutionally protected, nor does not empower
parents to shut out the state. It does allow them to assert fiduciary duty and to act
as agents in claiming children’s rights (Carter, 2007; McGillivray, 2010). Privilege
is conditional on performance of duty. Where law speaks, privilege ends.
VIII. Concluding Remarks
This essay surveys the (partial) shift from paternal powers to children’s rights in
the Supreme Court of Canada. In the past two decades, the Supreme Court issued
rulings touching on all aspects of fiduciary duty toward children. The result is not
good news for children. If the primary duty of parents is to refrain from harming
the child (M.(K.), 1992; K.L.B., 2003), in itself a barely minimal standard of
care, how can a law justifying a known cause of harm to children violate no right
of the child (Canadian Foundation, 2004)? If parens patriae jurisdiction embraces
all children (Wellesley, 1827) and is not confined by legislation (Eve, 1986), how
can the state legislatively shift the whole of its fiduciary obligations for children
onto state-licensed foster parents and state-managed institutions (K.L.B., 2003;
Reference re Broome, 2010)? If equity requires that a fiduciary act loyally in the
best interests of the other because of the inherent imbalance of power in all such
relationships (Norberg, 1992), how can the standard be a lesser one where the
beneficiary is a vulnerable and disempowered child (K.L.B., 2003)? If the child
has a right rooted in equity to receive support commensurate with parental
income, how can this right be over-ridden to punish a delinquent parent (D.B.S.,
2006)?
In the past two decades, the Supreme Court of Canada has issued judgments
invoking all incidents of potestas. The court abolished custodial rights (P.(D.),
1993; Syl Apps , 2007) by making them rights of the child, a good thing. It
upheld the proprietary right of corporal punishment, denying that battery violates any right of the child (Canadian Foundation, 2004). It reasserted the
proprietar right of control, despite an intense engagement with autonomy rights
— freedom of conscience and religion, the right to be heard — and the violation
of the security of the person inherent in medical invasion (A.C., 2009). It did so
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in both cases without putting the Crown to its proof under section 1 of the
Charter. By trumping children’s rights-claims with a welfare approach derived
from proprietary rights, the court has gutted the meaning of children’s rights.
Limiting the exercise of children’s rights does not require asserting someone else’s
rights to fill a putative rights-gap. It does require the close and reasoned justification that is to be accorded to all rights-claims. Childhood has bent the adjudication of rights in the Supreme Court of Canada.
Judicial engagement with children’s rights can be set on a spectrum ranging
from “invisible” through “incidental, selective, rhetorical, and superficial” to “substantive” (Tobin, 2009: 625). Substantive engagement “does not demand that all
other considerations be rendered nugatory”, nor does it ignore the child’s vulnerabilities. It does require something more than the Supreme Court has achieved.
With the exception of a handful of custody cases, some passionate dissenting
judgments and an intense but ultimately unsatisfying engagement with autonomy rights, the court registers low on the Tobin scale. The Convention rarely
appears. It is cited in some of the cases discussed in this essay and, with little or
no discussion, on who is a child (R. v. L. (D.O.), 1993) and the rights to parental
access (Gordon, 1996), protection from sexual exploitation (R. v. Sharpe, 2001)
and special consideration as a youthful offender (R. v. C.D., 2005). So rarely are
children’s rights mentioned by legislators, politicians, policy-makers and lawyers
that it would seem they have none. The Supreme Court of Canada is not alone in
failing to take children’s rights seriously (Tobin, 2009; Freeman, 1987, 1992,
2007; Archard and MacLeod, 2002) but it has gone further, vitiating fiduciary
standards and fortifying proprietary rights.
To see parental rights as rights correlative to fiduciary duty removes an analytical obstacle. Proprietary rights, relic of a long dark age in the governance of childhood, disappear. There is another crucial step to be taken. To see rights as markers
of relationship is to remove the disjunction between children’s rights, adults’
rights and the fiduciary obligations of parent and state. To see rights as markers
of relationship is to see rights as emblematic of the trust that underlies relationship, opening the way to understanding rights as both independent of autonomy
and as that which allows it to flourish. In “the relationship between / blackbird
and fencepost”, little in the world beyond the meadow “depends on their trust”
(Mann, 2002). In the everyday world of children, everything depends on it. The
Supreme Court of Canada has so far has shown little trust in children’s capacity
and less in their rights.
References
Archard, D., “Do Parents Own Their Children?” International Journal of Children’s Rights, 1993 (1),
293-301.
Archard, D. and C. M. MacLeod, The Moral and Political Status of Children (Oxford: Oxford
University Press, 2002).
A. McGillivray / International Journal of Children’s Rights 19 (2011) 21–54
51
Arnold, T., “Alberta quietly endorses children’s rights accord, ends 10-year opposition: province had
worried document would infringe on parents’ rights”, National Post Online, 8 March 1999
<http://www.fact.on.ca/newpaper/np99030w.htm> at 11August 2010.
Baker, J.H., An Introduction to English Legal History, 4th ed. (London: Butterworths, 2002).
Blackstone, W., Commentaries on the Law of England (1769) <http://avalon.law.yale.edu/18th_
century/blackstone_bk1ch16.asp> at 11 August 2010.
Boyd, S.B., Child Custody, Law, and Women’s Work (Oxford: Oxford University Press, 2003).
Bracton, H. de, On the Laws and Customs of England. (c. 1235) <http://hlsl5.law.harvard.edu/
bracton/Common/SearchPage.htm> at 11 August 2010.
Carter, M., “‘Debunking’ Parents’ Rights in the Canadian Constitutional Context”, Canadian Bar
Review , 2007 (86) 479-514.
Canwest News Service, 16 June 2009, “Teen cannot refuse blood transfusion, top court rules”,
<http://www.nationalpost.com/news/story.html?id=1735673> at 11 August 2010.
Carter, M., “The Children’s Trilogy: Canadian Foundation for Children, D.B., C.A. and the
Relationship Between the ‘Best Interests of the Child’ Principle and the ‘Principles of Fundamental
Justice’” in S. Anand, ed., Children and the Law: Essays in Honor of Professor Nicholas Bala
(Toronto: Irwin Law, 2010 forthcoming).
Chedzoy, A., A Scandalous Woman: The Story of Caroline Norton (London: Allison & Busby,
1992).
Chunn, D., From Punishment to Doing Good: Family Courts and Socialized Justice in Ontario 18501940 (Toronto: University of Toronto Press, 1992).
Durrant, J.E., N. Trocmè, B. Fallon, C. Milne and T. Black (2009) , ‘Protection of Children from
Physical Maltreatment in Canada: An Evaluation of the Supreme Court’s Definition of
Reasonable Force’, Journal of Aggression, Maltreatment & Trauma (18(1)), 64-87.
Durrant, J.E., N. Sigvaldason and L. Bednar, “What did the Canadian Public Learn from the 2004
Supreme Court Decision on Physical Punishment?”, International Journal of Children’s Rights,
2008 (16(2)), 229-247.
Durrant, J., R. Ensom, and the Coalition on Physical Punishment of Children and Youth, Joint
Statement on Physical Punishment of Children and Youth (Ottawa: Children’s Hospital of Eastern
Ontario) 2004 <http://www.cheo.on.ca/english/pdf/joint_statement_e.pdf> at 11 August
2010.
Filmer, R., Patriarcha or The Natural Power of Kings (1680) <http://www.constitution.org/eng/
patriarcha.htm> at 11August 2010.
Fortin, J., “Accommodating Childen’s Rights in a Post Human Rights Act Era”, (2006), Modern Law
Review, 2006 (69 (3)), 299-326.
Freeman, M., “Taking Children’s Rights Seriously”, Children and Society, 1987 (1), 299-319.
Freeman, M., “Taking Children’s Rights More Seriously”, International Journal of Law, Policy and
the Family, 1992 (6(1)), 52-71.
Freeman, M., “Whither Children: Protection, Participation, Autonomy?”, Manitoba Law Journal,
1994 (22), 307-327.
Freeman, M., “Why It Remains Important to Take Children’s Rights Seriously”, International
Journal of Children’s Rights, 2007 (15 (1)), 5-23.
Frier, B.W. and T.A.J. McGinn, A Casebook on Roman Family Law (Oxford: Oxford University
Press, 2004).
Gershoff, E., Report on Physical Punishment in the United States: What the research tells us about
its effects on children (Columbus, OH: Centre for Effective Discipline, 2008) <http://
www.phoenixchildrens.com/PDFs/principles_and_practices-of_effective_discipline.pdf> at 11
August 2010.
Gershoff, E., “Corporal Punishment by Parents and Associated Child Behaviors and
Experiences: a Meta-analytic and Theoretical Review”, Psychological Bulletin, 2002 (128 (4)),
539-79.
Hobbes, T., The Elements of Law Natural and Politic (1650) <http://etext.lib.virginia.edu/toc/
modeng/public/Hob2Ele.html> at 11 August 2010.
Hobbes, T., Leviathan (1651) <http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan
-contents.html> at 11 August 2010.
52
A. McGillivray / International Journal of Children’s Rights 19 (2011) 21–54
Justinian. The Code of Justinian (529), S.P. Scott, ed., The Civil Law (Cincinnati, The Central Trust
Company, 1932) <http://www.constitution.org/sps/sps.htm> at 11 August 2010.
Justinian, The Digest of Justinian (533), Alan Watson et al., eds. (Pennsylvania: University of
Pennsylvania Press, 1985).
Justinian, The Institutes of Gaius and Justinian (535), T. Lambert Mears tr. (London: Stevens and
Sons, 1882).
Locke, J. Second Treatise of Government (1690) <http://socserv.mcmaster.ca/econ/ugcm/3ll3/locke/
government.pdf> at 11August 2010.
Macdonald, J., “Alberta human rights code changes called ‘embarrassing’”, Canadian Press, 12 May
2009 <http://www.thestar.com/news/canada/article/633328> at 11 August 2010.
Mann, R., “Fiduciary”, Poetry, 2002 (180 (May)), 91.
McGillivray, A., “Abused Children in the Courts: Adjusting the Scales After Bill C-15”, Manitoba
Law Review, 1990, 549-79.
McGillivray, A., “Reconstructing Child Abuse: Western Definition and Non-Western Experience”
in M.D.A. Freeman and P. Veerman, eds., The Ideologies of Children’s Rights. (Dordrecht, Boston,
London: Martinus Nijhoff, 1992), 213-236.
McGillivray, A., “R. v. K. (M.): Legitimating Brutality”, Criminal Reports 4th, 1993 (16), 125132.
McGillivray, A., “Why Children Do Have Equal Rights: In Reply to Laura Purdy”, International
Journal of Children’s Rights, 1994 (2), 243-258.
McGillivray, A., “Governing Childhood” in A. McGillivray, ed., Governing Childhood (Aldershot:
Dartmouth, 1997).
McGillivray, A., “‘He’ll learn it on his body’: Disciplining Childhood in Canadian Law”,
International Journal of Children’s Rights, 1997 (5), 193-242.
McGillivray, A., “Childhood in the Shadow of Parens Patriae” in H. Goelman, S. Marshall and
S. Ross, eds., Multiple Lenses, Multiple Images: Perspectives on the child across time, space, and
disciplines (Toronto: University of Toronto Press, 2004a), 38-72.
McGillivray, A., “Child Physical Assault: Law, Equality and Intervention”, Manitoba Law Journal,
2004b (3), 133-166.
McGillivray, A. and J. Durrant, “Child Corporal Punishment: Violence, Law and Rights” in
Ramona Alaggia and Cathy Vine, eds., Cruel but not Unusual: Violence in Canadian Families
(Waterloo, Ontario: Wilfrid Laurier University Press, 2006), 177-200.
McGillivray, A., “Nowhere to stand: Correction by force in the Supreme Court of Canada” in
Sanjeev Anand, ed., Children and the Law: Essays in Honor of Professor Nicholas Bala (Toronto:
Irwin Law, 2010 forthcoming).
McGillivray, A. and C. Milne, “Canada: The Rocky Road of Repeal” in A. Smith and J. Durrant,
eds., Realizing the rights of children: Global progress towards ending physical punishment (London:
Routledge, 2010 forthcoming).
Mill, J.S., On Liberty (1859) <http://bartelby.org/25/2/1.html> at 11 August 2010.
Milne, C., “The Differential Treatment of Adolescents as a Principle of Fundamental Justice: An
Analysis of R. v. B. (D.) and C. (A.) v. Manitoba”, Supreme Court Law Review, 2009 (47), 235254.
Nedelsky, J., “Reconceiving Rights As Relationship”, Review of Constitutional Studies, 1993 (1), 1.
Pollock, L.A., Forgotten Children: Parcel Child Relation from 1500 to 1900 (Cambridge: Cambridge
University Press, 1983).
Raz, J., “Legal Rights”, Oxford Journal of Legal Studies, 1984 (4), 1-21.
Shanley, M.L., Feminism, Marriage and the Law in Victorian England (Princeton: Princeton
University Press, 1993).
Tobin, J., “Judging the Judges: Are they Adopting the Rights Approach in Matters Involving
Children?” Melbourne University Law Review, 2009 (33), 579-625.
Toronto Public Health, National Survey of Canadian’s Knowledge of the Law on Physical Punishment
of Children, 2007 <http://www.toronto.ca/health/pdf/summary_report_200703.pdf> at 11
August 2010.
van Caenegem, R.C, An historical introduction to private law (Cambridge : Cambridge University
Press, 1992).
A. McGillivray / International Journal of Children’s Rights 19 (2011) 21–54
53
Van Praagh, S., “Religion, Custody, and a Child’s Identities”, Osgoode Hall Law Journal, 1997 (35),
309-378.
Wall, J., “Human Rights in Light of Childhood”, International Journal of Children’s Rights, 2008
(16), 523-543,
Wilder, J.R., “Religion and Best Interests in Custody Cases”, Journal of the American Academy of
Matrimonial Lawyers, 2002 (18), 211-234.
STATUTES AND CONVENTIONS
Alberta Human Rights Act, R.S.A. 2000, c. A-25.5.
Canadian Charter of Rights and Freedoms 1982. Enacted as Schedule B to the Canada Act 1982,
(U.K.) 1982, c. 11, in force April 17, 1982.
Criminal Code. R.S., c. C-34, s. 1 (Canada).
Custody of Infants Act, 2 & 3 Vict. c. 54 (1839) (England and Wales).
Divorce Act (1985, c. 3 (2nd Supp.)) (Canada). Divorce Act (1986) R.S.C., 1985 (2nd Supp.) C. 3
(Canada).
Geneva Declaration of the Rights of the Child Adopted 26 September, 1924, League of Nations
(“World Child Welfare Charter”).
Guardianship of Infants Act, 49 & 50 Vict., c. 27, s. 5 (1886) (England and Wales).
Guardianship of Minors Act, S.O. 1887, c. 21 (Ontario).
Judicature Act, 36 & 37 Vict., c. 66 (1873) (England and Wales).
Prevention of Cruelty to and Better Protection of Children Act, S.O., 1893, c. 45 (Ontario).
United Nations Committee on the Rights of the Child, 9th session, Consideration of Reports
Submitted by State Parties Under Article 44 of the Convention: Canada (UN/CRC/C/15Add,
37, June 20 1995).
United Nations Committee on the Rights of the Child, 34th session, Consideration of Reports
Submitted by State Parties Under Article 44 of the Convention: Canada (UN/CRC/C/15/Add.,
215, 2003).
United Nations Convention on the Rights of the Child 1989, Can. T.S. No. 3, signed May 28,
1990, ratified by Canada December 13, 1991.
United Nations Declaration of the Rights of the Child G.A. res. 1386 (XIV), 14 U.N. GAOR
Supp. (No. 16) at 19, U.N. Doc. A/4354 (1959).
CASES
A.C. v. Manitoba (Director of Child and Family Services), [2009] SCC 30.
B. (P.A.) v. Curry (1997), 4 W.W.R. 431.
B.(R.) v. Children’s Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315.
Baker v. Minister of Citizenship and Immigration (Canada) [1999] 2 SCR 817.
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R.
76 (Appeal from the Ontario Court of Appeal (2002), 57 O.R. (3d) 511, affirming Superior
Court of Justice (2000), 49 O.R. (3d)).
Cary v. Bertie (1696), 2 Vern. 333.
D.B.S. v. S.R.G. ; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, [2006] 2 S.C.R. 231.
E. (Mrs.) v. Eve [1986] 2 S.C.R. 388.
Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241.
Falkland v. Bertie 23 ER 814.
Frame v. Smith, [1987] 2 S.C.R. 99.
G. (E.D.) v. Hammer, [2003] 2 S.C.R. 459.
Gillick v. West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 (House of Lords).
Gordon v. Goertz, [1996] 2 S.C.R. 27.
Gosselin v. Quebec (Attorney-General) [2002] 4 S.C.R.
K.L.B. v. British Columbia, [2003] S.C.R. 403.
54
A. McGillivray / International Journal of Children’s Rights 19 (2011) 21–54
M.B. v. British Columbia, [2003] 2 S.C.R. 477.
M.(K.) v. M.(H.), [1992] 3 S.C.R. 6.
M. (V.) v. British Columbia (Director of Child, Family & Community Services, BCSC/2008.
Malette v. Shulman (1990), 72 O.R. (2d) 417 (C.A.).
Multani v. Commission Scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256.
New Brunswick (Minister of Health and Community Services) v. C. (G. C.), [1988] 1 S.C.R. 1073.
New Brunwick (Minister of Health and Community Service) v. G.(J.) 1999, 3 S.C.R.46.
Norberg v. Wynrib, [1992] 2 S.C.R. 226.
Ogg-Moss v. R., [1984] 2 S.C.R. 173.
P. (D.) v. S. (C.), [1993] 4 S.C.R. 141.
R. v. A.E. [2000], O.J. No. 2984 (Ontario Court of Appeal).
R. v. C.D.; R. v. C.D.K., 2005 SCC 78, [2005] 3 S.C.R. 668.
R. v. D.B., [2008] SCC 25.
R. v. Delaval (1763), 3 Burr. 1434, 97 Eng. Rep. 913.
R. v. Greenhill, [1836] 4 Ad. & E. 624, 111 E.R. 922.
R. v. Gyngall [1893] 2 QB 232.
R. v. Hopley, (1860) 2 F&F 202.
R. v. Jobidon, [1991] 2 S.C.R. 714.
R. v. K.(M.) (1992), 16 C.R. (4th) 121 (Manitoba Court of Appeal).
R. v. L. (D.O.) [1993] 4 S.C.R. 419.
R. v. Sharpe [2001] 1 S.C.R. 45.
Ratcliffe’s Case (1592) 3 Co. Rep. 37 3 Rep. 37a, 40a-b (1592).
Re R (a minor) [1991] 4 All ER 177.
Re X (a minor), [1975] 1 All E.R. 697.
Reference re Broome v. Prince Edward Island, [2010] SCC 11.
Rolands v. Rolands (1983) 9 Family Law Review 320.
Syl Apps Secure Treatment Centre v. B.D., [2007] 3 S.C.R. 83.
W. (V.) v. S. (D.), [1996] 2 S.C.R. 108.
Wellesley v. Duke of Beaufort, [1827] 38 ER 236.
Wellesley v. Wellesley (1828), 2 Bli. N.S. 124, 4 E.R. 1078.
Winnipeg Child and Family Services (Northwest Area) v. D.F.G., [1997] 3 S.C.R. 925.
Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519.
Young v. Young, [1993] 4 S.C.R. 3.