Commentary on Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)

This chapter comprises a commentary on a rewritten judgment of the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) 2004 SCC 4. That decision concerned the constitutionality of the ‘reasonable punishment’ defence to the physical punishment of children.  After outlining the original judgment, I critique the rewritten judgment, and ask whether reframing the legal issue in terms of children’s rights might be more likely to invert the premise of the s43 debate than a human rights perspective.  It will be published in Helen Stalford, Kathryn Hollingsworth, and Stephen Gilmore, eds, Children’s Rights Judgments (Hart, 2017).

A pre-editing version of my chapter can be found here.

Family, Social Inequalities, and the Persuasive Force of Interpersonal Obligation

To date, the privatization of the costs of social inequalities for women and children has been criticized predominantly from a policy perspective. This article seeks to make a stronger case against remedying social inequalities through private law obligations by addressing the theoretical difficulties with such privatization with a particular focus on familial obligations. I take my core examples from the current Canadian understanding of the spousal and child support obligations. My analysis proposes and proceeds on the basis of a new discourse for obligations traditionally grouped together as “Family Law” obligations: first, interpersonal obligations, which arise from and tie together two citizens through either a single interaction or through their relationship as a whole; second, social obligations, which are owed by the community as a whole to individual citizens. I argue that the persuasive force of the focus on an individual’s responsibility for another’s financial need has obscured the reality of the state’s obligation, the broader social obligation, to respond to this need. I conclude with a discussion of the consequences of my analysis for the future of the spousal and child support obligations. If we deny an expanded role to these support obligations, can we do so in a way that avoids leaving the impoverished in an even more precarious position?

This paper is published in (2008) 22 International Journal of Law, Policy, and the Family 61-90, and also available here.

Uncertainty and Indecision in the Legal Regulation of Children: The Albertan Experience

In this article, the author uses Alberta legislation and case law to test two common perceptions held in relation to the historical treatment of children’s (legal) status in Canada: first, that legal regulation oscillates between welfare- and rights-oriented perspectives; second, that the same uncertainty in approach applies in relation to all regulation contexts, including child welfare and youth justice. These perceptions are often used as the baseline of analysis from one explores (any number of) recent developments in Canada, federally or provincially. Yet, examination of the Albertan experience calls into question the accuracy of this view of the shifting approach to the legal regulation of children’s status.

Using definitive cases from the Alberta courts, the author argues that neither of these perceptions accurately reflects the narrative of children’s status in Alberta. The article reveals the greater complexity of the changing approach to legal regulation of children’s lives. In addition, the article suggests that the nature of the uncertainty and ambivalence evidenced in court decisions and legislative reforms is context-dependent, but ultimately driven by tensions inherent within the modern conception of childhood. Consideration of the Albertan experience is particularly revealing because it was the Alberta courts that both introduced the concept of the “mature minor” into Canadian common law in the mid-1980s and then determined that child welfare legislation superseded the child’s common law status as decision-maker.

This paper is published in (2007) 23(2) Canadian Journal of Family Law 159, and available here.

Retroactivity, Social Obligation, and Child Support

The Supreme Court of Canada recently heard argument on the circumstances in which retroactive child support orders are justified. The claimants are four Alberta fathers who have been held subject to retroactive support obligations that extend to before the custodial parent’s application for variation of the existing order. The fathers argue that these orders are unfair and not justified by the Federal Child Support Guidelines. Supporting their argument is the position of courts in British Columbia, Ontario and Saskatchewan; these courts have adopted a more restrictive interpretation of the circumstances that justify retroactive orders than has the Alberta Court of Appeal.

This brief comment addresses the critical theory issues before the Court. First, is it the obligation or merely the extent of the obligation that is retroactive? Is the idea of retroactivity in the context of the child support obligation a misnomer? Second, what is the nature of the child support obligation? Third, and consequently, in what circumstances is a retroactive order justified?

This paper is published in (2006) 43 Alberta Law Review 1049, and also available here.

Trial by Proxy: How Section 15 of the Charter Removes Age from Adolescence

The issue of age-based discrimination under s.15 of the Charter most usually arises in relation to older Canadians. There has been little discussion as to how the s. 15 right to equal protection and equal benefit of the law regardless of age applies to minors. This article seeks to counter this trend, in particular in relation to adolescents’ autonomy right to make medical treatment decisions. There is little serious consideration given to the question of age discrimination against adolescents who wish to refuse critical medical care because adolescents are perceived as different from adults, different not just because of their youth, but because of their lack of maturity; a minimum age for entitlement to rights protection is employed as a proxy for this immaturity.

This article disagrees with this historical understanding of the relationship between adolescents’ maturity and their ability to exercise their own legal rights. Age is not always an adequate proxy for a minor’s maturity to make her own decisions, which is why the use of age in this way, in certain cases, violates a minor’s s. 15 equality right. The first section of this article articulates this argument in relation to the right to refuse critical health care. I argue that the four governing legal doctrines — health care and consent legislation, the common law “mature minor” doctrine, child welfare legislation, and the parens patriae jurisdiction — together fail to respect adolescents’ decision-making maturity.

Section two uses the current state of the literature within psychology and medical philosophy to develop a more realistic assessment of what it means to make a mature decision. I argue that when an adolescent satisfies this reworked maturity standard, it infringes her s. 15 equality right if her treatment decision is overridden by legislation or the court. I propose a set of guidelines to determine the appropriateness of using age as a proxy for maturity in relation to a selection of legal doctrines, and when such usage violates a minor’s s. 15 equality right.

The third section explores broader issues raised by this argument. I argue that a proper understanding of adolescents’ decision-making maturity directly affects the constitutionality of other legal doctrines such as those governing access to birth control and abortion, and those that determine the legal age of criminal responsibility. My analysis suggests that we will have to rethink how we regard adolescents as citizens. Given that prospect, what impact will this have on our current models of how the law interacts with individual family members, and how the notion of equality impacts upon individual family members? I propose that the development of a new language of children’s rights is central to ensuring that minors are not wrongly denied the exercise of their Charter rights, as current legal doctrine permits in the case of adolescents who refuse critical health care.

This paper is published in (2005) 4 Journal of Law and Equality 84-102, and also available here.

The End of an Age: Beyond Age Restrictions for Minors’ Medical Treatment Decisions

This research paper explores one aspect of society’s construction of aging – that the maturity to make decisions comes only with age. When considering the ways in which individuals can be discriminated against on the basis of their age, we tend to focus on the experiences of older Canadians. However, minors may equally suffer discrimination simply because they are below the age of legal majority. (I use the term “minors” only to reflect society’s division through law of our lifespan into childhood and adulthood, and do not intend to endorse status-based categorisation in any way). I question whether denying a minor the entitlement to make her own medical treatment decisions because of her age and presumed maturity may constitute discrimination within the terms of s.15 of the Charter.

This paper analyses the various provincial frameworks for determining whether a minor who refuses medical treatment will nevertheless receive that treatment, and contrasts these schemes with a full understanding of decision-making maturity. Some judges and statutes currently override minors’ mature treatment decisions. Yet, this may simply be because judges and law-makers have been unable to reconcile themselves to compromising the protection of minors in favour of minors’ autonomy when it is not clear that minors whose decisions satisfy the available tests of “maturity” have reached mature decisions.

What should we mean by “maturity”? A mature decision requires more than a high level of cognitive and psychosocial development specific to the decision-making context; a minor’s mature decision is not reached in an irrational manner, and is based on a relatively stable set of informing values, which are themselves socially tolerated. I contend that minors satisfy these criteria below the age of majority, although there can be no general rules for minors of the same age. As a consequence, age is an inadequate proxy for decision-making maturity. This paper concludes with recommendations for how provincial law might be brought into line with the demands of minors’ s.15 right to equal treatment, and suggests, among other proposals, the adoption of an age-based presumption of decision-making maturity for minors who are at least 12 years old.

The final paper is available here.


The Parental Support Obligation

Every jurisdiction in Canada has provided by statute for a parent to claim support from their adult child; the obligation imposed upon an adult child exists entirely in civil law since there are no corresponding criminal law provisions. The support obligation also has no history at common law. The filial support obligation originated in the Elizabethan Poor Laws as the state’s response to the difficulty of providing for the older members of the population. In Burgess, Judge Fisher stated he believed the Ontario provisions were added “to allow the State to make well-off children pay for parents in nursing homes rather than the State paying for them.” Yet, as Judge Fisher remarks, “the effect of [statutory filial support obligations] is far more sweeping.” Filial support obligations have the potential to enable any parent in need to directly claim support from their child, stepchild, grandchild, and, at least indirectly, from their child’s spouse.

To date, filial support legislation has been little used. Since 1982 there have been approximately twenty-three cases across Canada in which the issue of parents’ support has arisen, including cases that indirectly addressed this issue. The majority of these cases have arisen in Ontario (ten cases) and British Columbia (seven cases). As the population ages, and the average lifespan increases, this little-known area of law may become fertile ground for provincial governments seeking to recover the cost of caring for other people’s older relatives.

Provincial and territorial statutes are similar in their fundamental approach to the issue of parents’ support. In broad terms, an adult child is held obliged to support their parent when three requirements are satisfied: first, the parent has demonstrated the need for support; second, the parent cared for or supported the child against whom a claim is now being brought; third, the court is satisfied that the adult child is capable of providing support. The rest of this section will explore the circumstances in which the issue of filial support arises in a legal action, and the differences between various provinces’ and territories’ approaches, which relate to the necessary elements of the claim for support: who qualifies to make a claim, and against whom a claim can be made.

This paper is published as part of Nicholas Bala, Martha Shaffer, Lucinda Ferguson, “Family Law for the Older Canadian” in Ann Soden, ed., Advising the Older Client (Toronto, Ont.: Butterworths, 2005), and is also available here.