Book Review: Childhood and the Law in Canada: The Family/State Relationship by Ryan,Patrick Joseph

In the opening paragraph of Childhood and the Law in Canada, Patrick Joseph Ryan situates the book within the mode of case analysis dubbed “legal archaeology” by its progenitor, AW Brian Simpson in his Leading Cases in the Common Law (Clarendon Press, 1995, 12), and states that his aim is to teach “students to brief and moot leading cases” by placing their “facts in a social context or historical trajectory” (viii). To that end, each chapter of Childhood and the Law in Canada begins by focusing on the facts of a seminal case before delving into its background, the parties’ litigation strategies, and the broader socio-political and legal implications of each case. The result is a thought-provoking survey of specific areas where childhood and the law have intersected. The book's greatest strength is its use of parties’ written and oral submissions to explain how cases were framed by litigants, and its comparison of those strategies with the conclusions reached by different courts. Unfortunately, the book also suffers from questionable generalizations about the nature and history of specific laws, ¹ serious statistical issues, and numerous basic typographical errors.

In Chapter One, Ryan focuses on the case of E v Eve (1986), which concerned an application by Mrs. E to have a tubal ligation performed on her 21-year-old intellectually disabled daughter, Eve, after she was seen holding hands with a young man at an occupational training center. Ryan convincingly reads the case through the lens of “liberal eugenics” (4). Drawing on Michel Foucault's analysis of population management, Ryan disputes the conventional narrative that “eugenics declined in Canada with the rise of reproductive rights, and surging anti-racist, post-colonial movements in the 1970s” (3). Instead, he argues that “whenever the repeated application of reproductive techniques at the level of the individual produces a patterned population effect, eugenics has happened.” (4)

Thus, while Eve was not the victim of state-directed eugenics programs, such as those that existed in Alberta and British Columbia between 1928 and 1972, Mrs. E's effort to obtain a court order for Eve's sterilization nevertheless operated on a eugenic premise: that the guardians of intellectually disabled people who are unlikely to be able to care for their children should have the power to consent to the removal of those persons’ reproductive capacities. Ryan shows how the Prince Edward Island Court of Appeal (PEICA) invoked its parens patriae jurisdiction (meaning the protective jurisdiction of courts to assist persons incapable of looking after themselves) to overturn the trial judge's finding that neither the Mental Health Act nor the common law of wardship authorized sterilization of an incompetent adult.

Ryan then takes the reader on an engaging sojourn into the history of parens patriae jurisdiction, noting that while its emergence in case law in the late seventeenth and early eighteenth centuries rested on questionable authority, “over the next 150 years, a general wardship duty of the Crown for all children emerged” (20). From that premise, Ryan claims that this general wardship duty “gave birth to the modern family/state nexus” (20). The latter claim is overbroad. Parens patriae jurisdiction certainly played a role in the development of the child as a legal subject and object of attention/protection, but the relationship between the state and the family also changed in the eighteenth and nineteenth centuries because of shifting legal conceptions of what constituted ‘the family,’ the splitting of work and family life, and a host of political, economic, ideological, and social currents, as discussed in my text Constructing the Family: Marriage and Work in Nineteenth-Century English Law (University of Toronto Press, 2023).

The chapter then turns to the Supreme Court of Canada's (SCC) rejection of the PEICA's invocation of parens patriae as a basis for involuntary sterilization, and its declaration that “the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised … The discretion is to be exercised for the benefit of that person, not for that of others” (27). In other words, while Mrs. E might be the person tasked with raising Eve's child, if she had one, it was Eve's interests alone that mattered. Despite the Court's narrow interpretation, Ryan notes that “the strongly anti-natal advice” (32) received by women with intellectual and developmental disabilities, and parental pressure, has not reduced their incidence of sterilization. Indeed, Ryan says, “there are more than 10 times as many sexual sterilizations of the intellectually disabled every year in Canada than would have taken place under the older administrative form of eugenics” (34). This surprising figure is reached by a problematic reasoning process. Ryan states:

About 73 disabled people were sterilized annually by Eugenics Boards in western Canada between 1928 and 1972. If the policies of Alberta and British Columbia had been applied to all of Canada during these years, that number would have been about 463 state mandated sterilizations per year. Account[ing] [for] population growth, if state-centered eugenics had continued, it would have produced about 910 sterilizations of disabled Canadians annually in the first decades of [the] 21st century. What is the actual number? Over the last two decades around 9,000 intellectually disabled Canadians have been sterilized annually. (33)

Chapter 2 focuses on Van de Perre v Edwards (2001) and the SCC's treatment of racial socialization and identity in the context of the best interests of the child test. Ryan charts how the trial “quickly devolved into attacking the fitness of the other party to parent” (47) and “a tawdry game of exposé” (48). He also highlights the British Columbia Court of Appeal's (BCCA) questionable decision to add Valerie Edwards (the father's wife, not the mother of the child) as a party to the proceedings because it viewed her as a more stable parental figure than the child's biological parents. He shows how the BCCA latched on to Valerie's testimony that Kimberly “couldn’t teach him what it's going to be like to be black” (54), and that racial identity formation should have been a paramount concern for the trial judge, which resulted in an order placing the child in the custody of the Edwards’, with access to the mother. Ryan deftly shows how media coverage of the trial featured almost no discussion of race, and how “the narrative shifted radically at the release of the BCCA's opinion” (54), eventually going “national as a racial dispute” (55). Ryan seems critical of the SCC's finding that determining a child's best interests requires a case-by-case determination, in which racial socialization and cultural rights may fluctuate in importance. Concern over the unpredictable nature of the best interests test is longstanding. However, Ryan's claim that “if taken to the extreme this would make family law a kind of anti-law” (73) seems disproportionate and unnecessary.

Chapter 3 focuses on international child abduction. Initially, I was surprised by Ryan's choice to center the chapter on Ellis v Wentzell-Ellis (2010) rather than the more recent and authoritative decision of the SCC in Office of the Children's Lawyer v Balev (2018), particularly given the Court's endorsement of a hybrid approach to parental intentions and children's perspectives for the purpose of determining “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction. However, I suspect from his analysis of the parties’ submissions in Ellis that Ryan found the case a more interesting vehicle for demonstrating how parties can frame arguments about children's welfare in terms of attacks on the character of each parent—a point well made by his discussion. More troubling, however, is his assertion that “Canadian family law” has “a distrust of formulas” (104). I recognize that Ryan refers to a series of cases as support for his assertion, but the legislative scheme governing family law (a complicated mix of federal and provincial/territorial statutes and rules) is replete with formulae, most notably in the default approach to division of assets (for example, section 5(1) of Ontario's Family Law Act), courts’ general recourse to the Spousal Support Advisory Guidelines, and the mandatory use of provincial and Federal Child Support Guidelines (see section 15.1(3) of the federal Divorce Act and section 39(5) of Ontario's Family Law Act). In this age of statutes, case law alone is an insufficient basis for sweeping generalizations about areas of law.

In chapter four, Ryan focuses on corporal punishment of children and the case of Canadian Foundation for Children, Youth and the Law v Attorney General in Right of Canada (2004), which centered on a challenge to the constitutionality of section 43 of the Criminal Code, which permits teachers, parents, and persons standing in loco parentis to use reasonable force toward a pupil or child “by way of correction.” Once again, Ryan does a good job of showing the competing narratives deployed by each side to advance their case:

At each stage, the challengers opened their argument by stating that section 43 protected adults who hit and inflicted pain or fear upon children, and that this was wrong. The defenders of section 43 claimed that parents and teachers would not be able to touch children without their consent should the provision be struck down. (127)

Here, Ryan is quoting from the factum of the Attorney-General for Canada. The claim concerning the invention of family law and child protection, however, is Ryan's own assertion—and it is open to serious debate. On a doctrinal level, the creation of the modern field of family law was the result of a long and complex process of disaggregating what William Blackstone in his eighteenth-century Commentaries on the Laws of England (Clarendon Press 1765–9, 410) called the “private oeconomical relations” of the household (in order of priority: master and servant; husband and wife; parents and children) into, in the nineteenth century, the distinct fields of Domestic Relations (centered on the married couple) and the Law of Master and Servant, and then in the twentieth century into Family Law and Employment Law, a process of disaggregation which I describe in my article “Marriage, Work, and the Invention of Family Law in English Legal Thought” (2020). In addition, as Holly Brewer has shown in her chapter “The Transformation of Domestic Law” (Cambridge University Press 2008), common law in the eighteenth century treated children as little more than the property of their fathers. Mary Lyndon Shanley in Feminism, Marriage, and the Law in Victorian England, 1850-1895 (Princeton University Press 1989) underscored that it was only in the late nineteenth century that mothers’ custodial rights began to be recognized. As for child protection, its invention as a legal category stems as much from nineteenth-century labor laws (most notably, the various Factory Acts passed in England in the nineteenth century to regulate industrial working conditions and child labor) as it does from a concern with parental obligations.

In chapter 5, Ryan takes the reader on “a vast historical journey” (246) into “Sex Crime, Children's Evidence and the Duty to Report.” Much of the material here is interesting and the shift over time in judicial treatment of children's evidence is particularly well-handled. Less satisfying is the use of R v Kaija (2007) as the starting point and foundation for the ensuing discussion. While the duty to report sexual abuse of children is clearly related to the development of laws criminalizing sexual assault of children and the treatment of their evidence in court, it is nevertheless a distinct topic; as such, most of the chapter proceeds to chart developments unrelated to the duty to report, leaving me to wonder why Kaija was chosen as the vehicle for discussion, as opposed to a case such as R v Khan (1990), which dealt squarely with the treatment of children's evidence. Confusingly, Ryan also devotes vanishingly little space to the Ontario Court of Appeal's decision in Kaija, spending much more time discussing the trial judgment, despite positioning the appeal as the locus for discussion.

In a section entitled “Rediscovering Children's Evidence in Canada,” Ryan charts a series of cases, inquiries, and legislative amendments from the 1970s to the early 2000s which collectively demonstrate “growing acceptance of children's words and increasing concern about the frequency of sexual misconduct” (217). For the most part, this move is well-charted and engaging. It is, however, necessary to point out one historical error. On page 219, Ryan says:

For many centuries the law understandably focused upon sexual violence suffered by adolescent girls and women. The explicit purpose was to prevent the humiliation and trauma of forceable vaginal, anal or oral penetration (rape) and the disruption and shame associated with sex and pregnancy outside of marriage.

The final chapter uses Blackwater v Plint (2005) as a starting point for discussion of Indian Residential Schools and the horrors inflicted on thousands of Indigenous children in Canada over the course of the twentieth century. Ryan effectively contextualizes the case and discusses the submissions made by lawyers on both sides as the case progressed from the BC Supreme Court to the SCC, which ultimately agreed with the trial judge and dismissed the claim of negligence while upholding the claim of vicarious liability. However, I think he overestimates the cultural importance of the case. In his view,

When you give or listen to a land acknowledgment, participate in “Orange-Shirt” Day (National Day for Truth and Reconciliation), learn about the “sixties scoop” in schools or through news media, march in solidarity with the Indigenous children buried in unmarked graves, donate funds to investigate missing and murdered Indigenous women, publicly identify yourself and your family as “settlers,” you are swimming in the cultural wake of the Blackwater decision. (285–86)

Ryan then shifts his focus to the third element of the Indian Residential Schools Settlement Agreement: The Truth and Reconciliation Commission (TRC). Ryan is critical of the non-adjudicative model adopted by the TRC. He argues that:

it allowed perpetrators to hide from sight. It also silenced those who might defend themselves publicly. … Rather than following the South African example of adjudicating testimonial narratives and providing a process for perpetrators to demonstrate contrition and seek reconciliation, Canada's Commission offered well-groomed educational events. (288)

In the Prologue, Ryan states that his goal in writing Childhood and the Law in Canada was to help students to make sense of this area of the law via the contextualized study of leading cases. In this sense, while the book is not without problems, it is mostly successful. For historians of the family, the book provides useful analysis of the background to some of the more prominent Canadian cases that have dealt with the nexus between children, families, and the state. In so doing, it also reveals the malleability of legal argument and the contingency of judge-made law.