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Conceptualizing the child through an ethic of care : custody and access law reform in Canada Kelly, Fiona Jane 2003

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CONCEPTUALIZING T H E CHILD T H R O U G H A N ETHIC OF C A R E : C U S T O D Y A N D ACCESS L A W R E F O R M IN C A N A D A by FIONA JANE K E L L Y B.A., The University of Melbourne, 1999 L L . B . , The University of Melbourne, 1999 A THESIS SUBMITTED IN PARTIAL F U L F I L M E N T OF T H E REQUIREMENTS FOR T H E D E G R E E OF MASTERS OF LAWS in T H E F A C U L T Y OF G R A D U A T E STUDIES Department of Law We accept this thesis as conforming to, the required standard  T H E UNIVERSITY OF BRITISH C O L U M B I A August 2003 © Fiona Jane Kelly, 2003  In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission.  Department of Law The University of British Columbia Vancouver, Canada  Abstract  Since the late 1970's there has been a major ideological and normative shift in the way in which "the child" is conceptualized throughout the western world. Children have gone from being understood as vulnerable and in need of protection, to being perceived as autonomous, rights-bearing individuals. Related to this shift has been a change in what is considered to be in a child's "best interests". Increasingly, it is assumed, at least in the context of family law, that children's best interests are met by maintaining ongoing contact with both parents following separation or divorce, and that this can best be achieved by introducing into family law a presumption in favour of "shared parenting".  This thesis argues that such an approach to custody and access decision-making, and the particular conceptualization of the child upon which it is based, is flawed because it fails to take into account the individual circumstances of each child's life, ignores the relational nature of childhood, diminishes the importance of pre-separation caregiving relationships, and denies the child a voice. In light of these inadequacies, this thesis proposes an alternative way in which to conceptualize the child based on the "ethic of care". Unlike the protectionist and rights models, an ethic of care understands children in a relational context, grounds decision-making in the actual circumstances of children's lives, and emphasizes the actual activity of care.  The family law reform proposals currently being discussed in Canada, most particularly Bill C-22 (the Bill that, if passed, would amend the custody and access provisions of the Divorce Act), largely fail to incorporate an ethic of care. While Bill C-22 could be amended so that it is more aligned with an ethic of care, the rhetoric of justice, rights and equality, and the pro-contact regime this rhetoric has produced, is so ingrained in the best interests test that it may be impossible for the Bill to ever adequately incorporate an ethic of care. It may therefore be necessary to replace the best interests of the child test with a new decision-making framework that derives from the ethic of care.  ii  T A B L E OF CONTENTS Abstract  ii  Table of Contents  iii  Acknowledgments  v  CHAPTER I  Family Law Reform in Canada: the Rise of Shared Parenting . . . 1 1.1 1.2 1.3 1.4  CHAPTER II  CHAPTER III  C H A P T E R IV  Introduction The Global Rise of "Shared Parenting" Outline of Thesis Conclusion  Historical and Sociological Conceptions of the Child  1 5 13 16  17  2.1 Introduction 2.2 Models for Conceptualizing "the Child" 2.2.1 The Protectionist Model 2.2.2 The Children's Rights Model 2.3 Feminist Critique of Rights Framework 2.3.1 Rights and the Liberal Individual 2.3.2 Rights Over Relationships 2.3.3 The Problem of Speaking for Children: Appropriating Children's Rights 2.2 Conclusion  38 41  Conceptualizing the Child Through an Ethic of Care  42  3.1 Introduction 3.2 Carol Gilligan, Feminism, and the "Ethic of Care" 3.3 Applying the Ethic of Care to Children 3.3.1 The Relational Child 3.3.2 The "Principle of Actuality" 3.3.3 The Importance of Care: the "Activity of Care"  42 42 51 52 54 56  3.4 Conclusion  58  Bill C-22 and the Ethic of Care  60  4.1 Introduction 4.2 Bill C-22: The Historical and Ideological Origins 4.2.1 The History of Bill C-22  60 60 61  iii  17 19 20 26 34 35 37  CHAPTER V  CHAPTER VI  4.2.2 Discursive Themes in the Reform Process 4.3 The Ethic of Care and the Reform Process 4.3.1 Relationships 4.3.2 Principle of Actuality 4.3.3 Activity of Care 4.4 The Ethic of Care and Bill C-22 4.4.1 B U 1 - C 2 2 : Overall Structure 4.4.2 Analyzing the Specific Provisions of Bill C-22 4.4.2.1 Relationships 4.4.2.2 Principle of Actuality 4.4.2.3 Activity of Care 4.5 Conclusion  70 78 79 83 84 87 88 90 90 94 98 101  Translating the Ethic of Care into Legislation  103  5.1 Introduction 5.2 The "Best Interests" Test: Can it Incorporate an Ethic of Care? 5.3 Replacing the "Best Interests" Test: The Principle of Care in a Legislative Form 5.3.1 The "Approximation Principle" 5.3.2 The "Status Quo Principle" 5.3.3 The "Principles and Presumptions" Model 5.4 Conclusion  103  Conclusion: the Ethic of Care and Future Law Reform  104 Ill 112 120 121 123 125  6.1 Introduction 125 6.2 Introducing an Ethic of Care into Canadian Family Law . . 126 6.3 Possibilities for Further Research: the Ethic of Care and "Non-traditional" Families 134 6.4 Conclusion 137 Bibliography  139  iv  Acknowledgements  This thesis is the product of many hours of reading, writing, thinking, drafting and redrafting. However, it would not have been possible without the support and assistance of the following people.  First and foremost, I would like to thank Professor Susan Boyd who has been the most wonderful supervisor a graduate student could hope to have. Without her constant support, challenging suggestions, and gentle reminders that there was "life beyond the thesis", the whole process would have been far less enjoyable.  I would also like to extend my thanks to my second reader, Professor Judith Mosoff, for her comments, support and encouragement.  I also wish to thank two wonderful friends, Emma Cunliffe and Kristina Llewellyn, who both played an important role in the completion of this project. As friends, colleagues, comedians, and counsellors, Emma and Kristina have helped me through the tough times, and made sure I celebrated the milestones along the way. Thank you to both of you.  I would also like to thank my family - Mum, Dad, Kirsty and Jon - for their weekly phone calls and almost daily emails that kept me in touch with their lives and with Australia.  Finally, I wish to dedicate this thesis to Dr. Belinda Fehlberg. It was Belinda who first introduced me to the complexities of family law, who gave me my first job, and who encouraged me to pursue graduate studies. She has always been an inspiration to me - as a teacher, a mentor, a friend, and a mother. I know that this thesis reflects so many of the things she has taught me.  Chapter I  1.0  Family Law Reform in Canada: the Rise of Shared Parenting  1.1  Introduction  Since the late 1970's there has been a major ideological shift in the approach to postseparation parenting in family law throughout the western world, including Canada. In 1  the debates surrounding child custody and access, concepts such as the "clean break principle", the "tender years doctrine", and the "primary caregiver presumption" have been replaced with equality and rights based principles such as "shared parenting" and "joint custody". Both joint custody and shared parenting are premised on the notion that parents have an equal right to their children following divorce (independent of their roles during the marriage), and that children's best interests are served by both parents having a role in their lives. In recent years the latter has increasingly been framed as a child's "right to contact" with both parents.  The concept of shared parenting has been at the centre of the recent Canadian custody and access law reform process. A presumption in favour of shared parenting is the 2  preferred option of many fathers' rights groups, as well the Special Joint Committee on 3  Child Custody and Access. Women's groups and many academics have, however, 4  5  6  It is difficult to know exactly when the ideological shift in family law first began to take place, but commentators suggest that the process began in the late 1970's: see, eg, Susan Boyd, Child Custody, Law, and Women's Work (Don Mills, ON: Oxford University Press, 2003) at 73-89. While this process arguably began in the mid-1980's with the House of Commons Standing Committee on Justice and Legal Affairs, the focus of my thesis is the more recent period of reform beginning in the early 1990's with the review of Canadian child support law. For a discussion of the history of earlier custody and access reform debates see: Susan Boyd & Claire Young, "Who Influences Family Law Reform? Discourses on Motherhood and Fatherhood in Legislative Reform Debates in Canada" (2002) 26 Studies in Law, Politics, and Society 43. See, eg, Submission by Malcolm Mansfield of Fathers Are Capable Too (FACT), Proceedings of the Special Joint Committee on Child Custody and Access (Ottawa: Public Works and Government Services, 1998), 11 March 1998 (available online at: www.parl.gc.ca) ["Proceedings"]; Submission of Heidi Nabert of the National Shared Parenting Association, 11 March 1998, Proceedings. Parliament of Canada, For the Sake of the Children, Report of the Special Joint Committee on Child Custody and Access, December 1998 ["For the Sake of the Children"]. Ontario Women's Network on Custody and Access, Brief to the Federal, Provincial, Territorial Family Law Committee on Custody, Access and Child Support, 6 June 2001 (available at: www.owjn.org); 1  2  3  4  5  1  expressed significant opposition to such a presumption. Most recently, a presumption in 7  favour of shared parenting was also rejected by the Federal-Provincial-Territorial Family Law Committee. The provisions of Bill C-22, the Bill that, if enacted, will amend the 8  custody and access provisions of the federal Divorce Act, reflect this division of opinion.  9  While a presumption in favour of shared parenting is not explicitly included in the Bill, it is arguably implicitly incorporated into the "best interests of the child" test. Thus shared parenting is likely to become a feature of Canadian family law, if it is not already.  10  Many factors have contributed to the emergence of shared parenting laws, including an assumption that women's increased labour force participation has meant that caregiving is equally shared between men and women, a perceived gender bias against fathers in family law, and a desire to reduce the "proprietorial" nature of disputes about children.  11  Another significant factor in the emergence of shared parenting laws, and the focus of this thesis, is society's changing perceptions of "the child" and his or her "best interests". Over the past two decades there has been a dramatic shift in the way in which the child is  Submission by Carole Curtis of the National Association of Women and the Law, 16 March 1998, Proceedings, supra note 3; Submission by Cori Kalinowski of the Justice Committee of the National Action Committee on the Status of Women, 16 March 1998, Proceedings, supra note 3; Submission of Elaine Teofilovici of YWCA Canada, 16 March 1998, Proceedings, supra note 3. Boyd, supra note 1; Brenda Cossman & Roxanne Mykitiuk, "Reforming Child Custody and Access Law in Canada: A Discussion Paper" (1998) 14 Can. J. Fam. L. 131; Marie Laing, "For the Sake of the Children: Preventing Reckless New Laws" (1999) 16 Can. J. Fam. L. 229; Helen Rhoades, "The Rise and Rise of Shared Parenting Laws" (2002) 19 Canadian Journal of Family Law 75. It should be noted that academics and women's groups have not completely rejected shared parenting as a concept. Rather, they are opposed to it being introduced as a normative principle in family law. Canada, Final Federal-Provincial-Territorial Report on Custody and Access and Child Support: Putting Children First, November 2002 ["Putting Children First"]. Bill C-22, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and to amend other Acts in consequence, 37 Pari., 2002 ["Bill C-22"]. 6  7  8  9  th  Research suggests that there is a judicial trend in Canada towards shared parenting and a presumption that contact is in a child's "best interests", despite the absence of any legislative rule to that effect: Dawn Bourque, '"Reconstructing"' the Patriarchal Nuclear Family: Recent Developments in Child Custody and Access in Canada" (1995) 10 C.J.L.S. 1; Susan Boyd, "Is There an Ideology of Motherhood in (Post)Modern Child Custody Law? (1996) 5 Social and Legal Studies 495 at 502; Boyd, supra note 1 at 132-37. Research also suggests that the presence of spousal abuse has little effect on this pro-contact position: Linda Neilson, "Partner Abuse, Children and Statutory Change: Cautionary Comments on Women's Access to Justice" (2000) 18 Windsor Y.B Access Just. 115 ^Partner Abuse"]; Linda Neilson, Spousal Abuse, Children and the Legal System: Final Report for the Canadian Bar Association, Law for the Futures Fund (Fredericton: Muriel McQueen Fergusson Centre for Family Violence Research, UNB, 2001) ["Spousal Abuse"]. Rhoades, supra note 6 at 79-84. 1 0  11  2  conceptualized. After several centuries of being understood as vulnerable, lacking capacity, and in need of protection, the child is now increasingly understood within a "rights" framework. The case law and legislation of many jurisdictions embodies a notion of the child informed by the rhetoric of rights, and some nations have included articles from the United Nations Convention on the Rights of the C h i l d their domestic law.  12  ["the CRC"] within  Children s rights have also gradually been incorporated into family ?  law, most notably in relation to the child's "right to contact" with both of his or her parents. Such a right is, for example, included within the C R C , law legislation  15  1 4  as well as in the family  and case law of some jurisdictions. In Canada, the child's "right to 16  United Nations Convention on the Rights of the Child, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force 2 September 1990 ["CRC"]. For example, Australia has included several articles from the CRC in the Family Law Act 1975 (Cth) (eg, s. 60B(2)), and the Children and Young Persons Act 1989 (Cth) (eg, s. 18). Some states in the US require that a child be represented by his or her own advocate if his or her own custody is in dispute (Family Code, S 3150-3 (CA), while German law vests children who are fourteen years of age or older with considerable rights of hearing and appeal (Para 1671 Abs 3 BGB, Gesetz uber die Angelengenheiten der Freiwilligen Gerichtbarkeit (FGG) § 50b). Article 7 of the CRC states that the child has "the right to know and be cared for by his or her parents". Articles 9 and 10 of the Convention protect the right of the child who is separatedfromone or both parents, or whose parents reside in different States, "to maintain personal relations and direct contact with both parents on a regular basis, unless it is not in the best interests of the child." CRC, supra note 12. See, eg, s 60B(2) of the Australian Family Law Act 1975 (Cth), which states that: (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never live together; and (b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development. Section 16(10) of the Canadian Divorce Act, R.S.C. 1985 (2 Supp.), c. 3 ["the Divorce Act], also arguably promotes a right of contact through the "maximum contact" rule: "In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact." Christine Davies has argued that, in practice, s. 16(10) amounts to a virtual presumption in favour of contact: Christine Davies, "Report of the Special Joint Committee on Custody and Access and the Concept of Shared Parenting" (2001) 19 C.F.L.Q. 363. 12  13  14  15  nd  It is difficult to know exactly how many countries have adopted a "right to contact" because the right may exist in practice even though it is not enshrined in law. However, the work of Kurki-Suonio, who undertook a comparative analysis of whether joint custody has become a cultural norm, suggests that the right to contact is a common feature of family law in many countries (her analysis included California, England, Germany, Sweden and Finland): Kirsti Kurki-Suonio, "Joint Custody as an Interpretation of the Best Interests of the Child in Critical and Comparative Perspective" (2000) 14 I.J.L.P.F. 183. For a discussion of the shift towards a "right to contact" in Canadian case law see: Boyd, supra note 1 at 132-56. For a similar discussion in relation to Australian judicial trends see: Helen Rhoades, Reg Graycar & Margaret Harrison, The Family Law Reform Act 1995: the First Three Years (Sydney: University of Sydney and the Family Court of Australia, 2000). 16  3  contact" has come to dominate custody and access decision-making, and is often enforced even when there is a history of abuse within the family.  17  Closely linked to the rise of children's rights in family law and, in particular, the child's right to contact, is the question of what is in the child's "best interests". The "best interests of the child" test, which has its origins in the "welfare principle" of the early 1900's, is the most common test used to make child custody and access determinations in most jurisdictions, including Canada.  The "best interests" principle is also embodied in  Article 3 of the C R C , which states that, "In all actions concerning children.. .the best interests of the child shall be a primary consideration." Arguably, as our 19  conceptualization of the child has changed, so has our perception of what is in the child's "best interests". Thus, as children went from being understood as vulnerable and in need of protection, to being seen as autonomous, rights-bearing individuals, the content of the "best interests" test changed to incorporate this ideological and normative shift. In particular, the notion of the child's "right to contact" had a significant impact on the best interests test, with many judges, politicians, and fathers' rights advocates suggesting that a child's "best interests" can only be guaranteed by ensuring ongoing contact with both parents.  20  In this chapter I will look more closely at this ideological shift in the approach to postseparation parenting, focusing in particular on the role our conceptualization of the child has played in the process. First, I will discuss the origins of the shift towards shared parenting, both locally and internationally. I will then explain why I have chosen to focus on the role our conceptualization of the child has played in Canadian family law reform debates. Finally, I will provide an outline of the remaining chapters of this thesis.  Neilson, Partner Abuse, supra note 10; Neilson, Spousal Abuse, supra note 10. See s. 16(8) of the Canadian Divorce Act which states that in making an order under s. 16 (custody orders) "the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child." CRC, supra note 12 at art. 3. Richard Collier, "In Search of the 'Good Father': Law, Family Practices and the Normative Reconstruction of Parenthood" (2001) 22 Studies in Law, Politics and Society 133 at 142; Boyd, supra note 1 at 130-32. 17  18  19  2 0  4  1.2  The Global Rise of "Shared Parenting"  As stated above, at the centre of the recent ideological shift in the approach to postseparation parenting has been the concept of "shared parenting". Similar to joint 21  custody, "shared parenting" mandates that following separation both parents have automatic and ongoing rights in relation to their children, independent of the roles they played during the marriage. Thus shared parenting is ostensibly gender-neutral in its application, and places little emphasis on pre-separation caregiving patterns or on the actual relationship between the child and each of his or her parents. Over the past 15 years various models of shared parenting have been incorporated into family law in several jurisdictions, and have been proposed in many more, including Canada. In fact shared parenting laws have become so commonplace that one commentator has suggested that there appears to be a "contemporary cultural consensus" that it is the "ideal custodial arrangement" for children  2 2  The emergence of shared parenting laws has been the result of several key factors. Perhaps the most commonly cited factor has been men's complaints and government concerns about the legal and social position of non-custodial fathers. Citing statistics 24  that show that mothers are awarded custody more often than fathers, fathers' rights advocates argue that the family law system is biased against them and that this bias can  The UK adopted shared parenting in 1991 {Children Act 1989 (UK)), while Australia made similar changes in 1996 {Family Law Reform Act 1996 (Cth)). Shared parenting or joint custody is also in force in several states in the US (see, eg, Washington State Parenting Act 1987), and is being discussed in Canada (see, eg, For the Sake of the Children, supra note 4) and Hong Kong (Hong Kong, Law Reform  2 1  Commission of Hong Kong, Sub-Committee on Guardianship and Custody Consultation Paper (December 1998)). Kurki-Suonio, supra note 16 at 184. Rhoades, supra note 6 at 79. Ibid, at 80; Boyd & Young, supra note 2; Susan Boyd, "Can Child Custody Law Move Beyond the Politics of Gender?" (2000) 49 U.N.B.L.J. 157; Regina Graycar, "Equal Rights Versus Fathers' Rights: The Child Custody Debate in Australia" in Carol Smart & Selma Sevenhuijsen, Child Custody and the Politics of Gender (London: Routledge, 1989) 158; Carl Bertoia & Janice Drakich, "The Fathers' Rights Movement: Contradictions in Rhetoric and Practice" (1993) 14 Journal of Family Issues 592; Collier, 2 2  2 3  24  supra note 20.  5  only be corrected by introducing a "gender-neutral" test for determining custody and access based on a presumption in favour of shared parenting.  25  Fathers' rights groups, and their arguments about shared parenting, have had a considerable impact on the restructuring of custody and access law and practice in Canada. This success can be at least partly attributed to the movement's appeal to the rhetoric of "equality" and "rights", principles which are held in reverence in most western, liberal democracies.  As Kaye and Tolmie argue, the equality rhetoric used by  fathers' rights groups is particularly powerful "because it appeals to deep and commonly held values, and does so by what appears to be simple and obvious logic - if people are treated differently (according to their gender) then by definition they are not treated 77  equally." Fathers' rights advocates have also successfully drawn attention to previous law reform efforts, such as the introduction of child support guidelines, to suggest that past family law reform has benefited women at men's expense  2 8  In discussing these past  reforms, father's rights groups have suggested that the "pendulum has swung too far" in favour of women, and that it is now time to reinstate formal equality through the introduction of shared parenting laws.  Fathers' rights advocates have also successfully  positioned themselves as advocates for children, suggesting that it is in children's "best interests" to have ongoing contact with their fathers. This position has been accepted by 30  Submission by Malcolm Mansfield of Fathers Are Capable Too (FACT), 11 March 1998, Proceedings, supra note 3; Submission of Heidi Nabert of the National Shared Parenting Association, 11 March 1998, Proceedings, supra note 3; Submission of Paul Miller of the Men's Educational Support Association, 29 April 1998, Proceedings, supra note 3. 2 5  Bertoia & Drakich, supra note 24 at 592. Similar arguments have been made in the Australian context: Miranda Kaye & Julia Tolmie, Discoursing Dads: The Rhetorical Devices ofFathers' Rights Groups (1998) 22 Melbourne U.L. Rev. 162. Kaye and Tolmie, ibid, at 166. 2 6  2 7  Nicholas Bala, "A Report of Canada's 'Gender War Zone': Reforming the Child-Related Provisions of the Divorce Act' (1999) 16 Can. J. Fam. L. 163 at 182. Kaye & Tolmie, supra note 26. Boyd, supra note 1 at 201. 2 8  2 9  3 0  6  31  politicians issue.  32  and courts  alike, despite the conflicting social science evidence on the  33  Another commonly cited reason for the rise of shared parenting laws is women's increased labour force participation, and the associated issue of the gendered division of caregiving labour within the home.  34  It has often been presumed during debates about  custody and access that because women are now more likely to participate in the paid workforce they no longer play the dominant caregiving role within the home. In fact, on some occasions it has been presumed by the courts that men have "sprung into the breach" created by women's workforce participation. There does not, however, appear 35  to be any truth to this argument. While women have increased their labour participation rate dramatically over the last forty years, there has not been any significant increase in men's participation within the home.  However, women have also, at various times,  argued that their increased labour force participation should change the nature of custody and access decision-making. Taking the view that shared parenting laws might encourage men to take on greater caregiving responsibility during and after marriage, some women's advocates have argued that shared parenting laws might ease the burden of  For the Sake of the Children, supra note 4. See, eg, Doise v Doise, [1993] B.C.J. No. 2867 (B.C.S.C.) (QL) in which Dorgan J. stated: "[I]n my view [the mother's] conduct clearly and negatively impacts on her ability to provide responsible, reasonable custodial care, considering all of the needs of these two children, and considering their right and need to know and to enjoy a relationship with their father in a meaningful way." A Canadian review of social science research clearly indicates that continuing contact with each parent is only one factor associated with positive outcomes for children of divorce. Other key factors are a wellfunctioning custodial parent and avoidance of parental conflict. As is obvious, these three factors may well conflict in situations where ongoing contact limits the ability of the custodial parent to function or causes parental conflict. In such cases, it may in fact be detrimental to encourage contact. Martha Bailey & Michelle Giroux, Relocation of Custodial Parents: Final Report (Ottawa: Status of Women Canada, 1998) at 43-48. Rhoades, supra note 6 at 82; Kurki-Suonio, supra note 16 at 189. See Banks v. Banks, [1987] W.D.F.L. 147 (Ont. U.F.C.) Goodearle J., at 23-24. As a recent Statistics Canada report indicates, "[D]espite the increased participation of women in the labour market, women's share of unpaid work hours has remained quite stable since the early 1960s, at about two-thirds of the total": Statistics Canada, Women in Canada 2000: A Gender-Based Statistical Report (2000) at 97. There is actually some suggestion that the load of unpaid housework and caring that falls on women in the family is increasing in Canada as government cost-cutting measures take effect, eliminating programs and services in the health care sector, education, and a host of specialized programs for persons with disabilities, for recent immigrants, for the elderly and for children: Sheila Neysmith, ed., Restructuring Caring Labour (Toronto: Oxford University Press, 2000). 31  3 2  3 3  3 4  3 5  3 6  7  post-divorce parenting on mothers and assist them in achieving economic independence from their former husbands.  37  Related to the question of women's labour force participation is the rise of the image of the "new father" who has the capacity to care for and nurture children. The term "new 38  father" has emerged during the past decade to label the kinder, more caring, less aggressive father; the father of "companionate marriage" and the egalitarian "symmetrical family".  Collier argues that it is, in essence, "a 'progressive', optimistic  model of fatherhood premised on the idea of there being a convergence of women's and men's lives, notably via a weakening of the sexual division of domestic labour." Thus 40  the "new father" is portrayed in the media and the courts as an "active parent", as capable of caring for children as a mother. There is even a suggestion on the part of some 41  proponents of the "new fatherhood" that fathers provide benefits to children that mothers are unable to provide. For example, it has been argued that children raised without fathers do not have the same drive to achieve intellectually or economically. The rise of the 42  image of the "new father", in conjunction with women's increased labour force participation, has played a key role in the rise of shared parenting laws.  A third reason for the ideological shift towards shared parenting has been the desire on the part of government and those who work in family law, such as mediators and counsellors, to reduce the 'proprietorial' nature of custody and access disputes. It has  See, eg, Katherine Bartlett & Carol Stack, "Joint Custody, Feminism, and the Dependency Dilemma" in Jay Folberg, ed., Joint Custody and Shared Parenting, 2 ed. (New York: Guilford Press, 1991) at 63. For a discussion of the image of the "new father" see: Richard Collier, "Waiting Till Father Gets Home: The Reconstruction of Fatherhood in Family Law" (1995) 4 Social and Legal Studies 5; Lynne Segal, Slow Motion: Changing Masculinities, Changing Men (London: Virago Press, 1997) 26-59; Carol Smart, "Power and the Politics of Child Custody" in Smart & Sevenhuijsen, supra note 24 at 11. Collier, supra note 20 at 137. Ibid, at 134. See, eg, Jim Cryns, "Stay-at-home Fathers now Proudly Fight Convention", Milwaukee Journal Sentinel (Wisconsin) June 18, 2003 at 4B; Julie Shields, "More Dads Ditching their Traditional Role", The Baltimore Sun, 15 June, 2003 at 5C; Susan Semenak, "The Mr. Mom Generation", The Gazette (Montreal, Quebec), 20 January 2001, A1. For a discussion of the image of the "new father" in the media and visual images see: Carol Smart, "Power and the Politics of Child Custody" in Smart & Sevenhuijsen, supra note 23 at 10-14. See discussion in Collier, supra note 38 at 20. J /  nd  3 8  3 9 40  4 1  4 2  8  been suggested by numerous family law service providers, as well as several law reform 43  committees, that the language of "custody" and "access" connotes the ownership of 44  children, and refers to a bygone era during which children and women were chattels owned by the husband. It has also been suggested that custody and access terminology promotes a potentially damaging sense of "winners" and "losers", and that use of the terms may cause an escalation in conflict between divorcing parents. Shared parenting, which is ostensibly premised on co-operation and equality between parents and usually involves the elimination of terms such as custody and access, is presumed to overcome the proprietorial nature of the current system; by focusing on sharing the child between parents there is less of a sense of ownership or "winners" and "losers".  A fourth reason for the rise of shared parenting laws is that they accord with the general societal shift towards the re-privatization of the costs of child-rearing within the family.  45  As Smart and Neale argue: While, ostensibly, the new model of family life is driven by the welfare discourse alone, it is clear that less altruistic considerations also come into play. These include the treasury-led assumption that if biological fathers continue to see their children then they will carry on paying for them. 46  Smart and Neale suggest that the presumption behind shared parenting is that it will encourage fathers to maintain child support payments, which will, in turn, reduce the number of women who need to turn to government welfare for support. Thus, shared 47  parenting, with its emphasis on private ordering of parenting, is of fiscal benefit to government.  See, eg, submission of Elaine Rabinowitz of Prince Edward Island Provincial Child Sexual Abuse Advisory Conmmittee, 27 May 1998, Proceedings, supra note 3; Submission of Howard Irving, Mediator, 25 March 1998, Proceedings, supra note 3. See, eg, For the Sake of the Children, supra note 4; Putting Children First, supra note 8. For a discussion of the privatization debate within family law see: Boyd, supra note 1 at 215-27; Brenda Cossman "Family Feuds: Neo-Liberal and Neo-Conservative Visions of the Reprivatization Project" in Brenda Cossman & Judy Fudge, eds., Privatization, Law and the Challenge to Feminism (Toronto: University of Toronto Press, 2002) 169. Carol Smart & Bren Neale, Family Fragments? (Cambridge: Polity Press, 1999) at 38. The way in which the reform process occurred in Canada suggests that child support law reform and custody and access law reform were intrinsically linked in the minds of government. In fact, in order to get the child support Guidelines through the Senate the government agreed to convene a Special Joint Committee to address concerns about child custody and access law: see Bala, supra note 28 at 182. 4 J  4 4  4 5  4 6  4 7  9  The final factor contributing to the global rise of shared parenting, and the one that will be the focus of this thesis, is the question of how we conceptualize children and their needs. Over the past twenty years there has been a significant shift in how we conceive of children and what we believe to be in their "best interests". Children have gone from being understood as vulnerable and in need of protection ("the protectionist model"), to 48  being perceived as autonomous, rights-bearing individuals ("the children's rights model"). Furthermore, children are now presumed to possess many of the rights 49  previously only afforded to adults. Many of these rights are enshrined in the CRC, which has been ratified by all but one country in the world. The children's rights model has 50  also had a significant impact on family law. Family law reformers in jurisdictions such as Canada frequently talk of making family law legislation "child-centred", with an emphasis on the "rights" of children and the "responsibilities" of parents. Some 51  countries, such as Australia, have actually incorporated certain "rights of the child" into their family legislation, such as a child's "right to contact" with both of his or her parents. Children's rights have not completely replaced protectionism within family law 52  but, as one children's rights advocate put it, increasingly people talk of protecting children's rights as well as, or in substitution for, protecting children.  53  Related to this shift towards conceptualizing the child through a rightsframeworkhas been a change in our understanding of what is in children's "best interests". The "best interests of the child" test has emerged as the dominant standard by which to make decisions about child custody and access in most western countries, including Canada.  54  Chris Jenks, ed., The Sociology of Childhood: Essential Readings (London: Batsford, 1982); Chris Jenks, Childhood (London: Routledge, 1996); Martin Hoyles, Changing Childhood (London: Writers and Readers Publishing Co-op., 1979). 4 8  Philip Veerman, The Rights of the Child and the Changing Image of Childhood (Dordrecht: Martinus Nijhoff, 1992); Michael Freeman, The Rights and Wrongs of Children (London: Frances Pinter, 1983); Chris Barton and Gillian Douglas, Law and Parenthood (London: Butterworths, 1995) at 423. CRC, supra note 12. The only country in the world to not have ratified the CRC is the United States. See, eg, For the Sake of the Children, supra note 4; Putting Children First, supra note 8; Press Release, Minister of Justice Announces the Child-Centred Family Justice Strategy, Ottawa, December 10, 2002 (available at: http://canada.iustice.gc.ca/en/ps/pad/about/index.html'). Family Law Act 1975 (Cth) s. 60B(2). Richard Farson, Birthrights (Harmondsworth: Penguin, 1979) at 37. Divorce Act, R.S.C. 1985 (2 Supp.), c. 3, s. 16(8). 4 9  5 0  5 1  52  5 3 54  nd  10  However, the best interests principle is a highly malleable concept, whose meaning has 55  been transformed over the past two decades to reflect a particular perception of the child and "the family". At the centre of this changing notion of what is in the child's best 56  interests is a growing concern in recent years about the effect on children of what has been termed "father absence". It has been suggested by politicians, fathers' rights advocates, and some members of the psy-professions that "father absence" leads to poor outcomes for children, including emotional damage, poor performance at school, promiscuity in girls and delinquency in boys. In order to counter the alleged effects of 57  fatherlessness, the best interests principle has come to incorporate, at least implicitly, a child's "need" for a father. In the context of the new children's rights framework, this focus on fathers has been translated into a "child's right to contact with both parents".  58  The child's right to contact has also become fundamental to the rhetoric of fathers' rights groups, who use the child's right to contact to support their own "right" to be involved in their children's lives.  59  These changes in how we conceptualize the child and what we perceive to be in a child's "best interests" have been fundamental to the rise of shared parenting. Shared parenting encapsulates this new concern with father absence and frames it within the context of children's rights. In fact, Collier argues that the centerpiece of the shift towards shared parenting is a "reworking of the [best interests] principle".. .to incorporate a belief that children "suffer through lack of contact with both parents." The logical next step, in 60  order to reduce the damage to children posed by "father absence", is to grant them a  " For a discussion of the malleability and indeterminacy of the best interests principle see: Robert Mnookin, "Child-custody Adjudication: Judicial Functions in the Face of Indeterminacy" (1975) 39 Law & Contemp. Probs. 226 at 260. Carol Smart, "Losing the Struggle for Another Voice: The Case of Family Law" (1995) 18 Dal. L.J. 173 at 183-84; Smart & Neale, supra note 46 at 188; Bourque, supra note 10; Boyd, supra note 1 at 133. Smart & Neale, supra note 46 at 36; Rhoades, supra note 6 at 83-84. It is interesting that governments have focused on the "right of contact" above almost all other rights included within the CRC. This is possibly because it is both cheaper and easier to guarantee civil and political rights, such as a right to contact, than to guarantee social or economic rights, such a right to economic security, housing, or equality of living conditions. Susan Boyd, "Backlash and the Construction of Legal Knowledge: The Case of Child Custody Law" (2001) 20 Windsor Y.B. Access Just. 141 at 145. Collier, supra note 20 at 142. 5 6  5 7  5 8  5 9  6 0  11  "right" to contact. Shared parenting has thus become deeply entangled with how we conceptualize the child and the question of what is in children's best interests.  It is clear from the discussion above that a number of factors have contributed to the rise of shared parenting. However, as stated earlier, the focus of my thesis will be the final factor: the changing way in which we conceptualize the child. I have chosen to focus on this factor for several reasons. First, a considerable amount has already been written about the other factors in the debate, particularly the role of fathers' rights groups, and I do not wish to repeat what has already been discussed. In contrast, very little has been written about the role that recent changes in how we conceptualize the child have played in the reform debates. Interestingly, the literature that does exist on this issue often alludes to the possibility of reconceptualizing the child through an "ethic of care". In my thesis I want to investigate this possibility further and consider how it might work in practice, focusing in particular on the current family law reform proposals in Canada.  The second reason for focusing on the role that our conceptualization of the child has played in recent family law reform debates, is that in their battles over family law reform both fathers' rights groups and women's groups have, at various times, positioned themselves as advocates for children. Fathers' rights groups in particular have co-opted the language of children's rights to support their own claims for contact. Significantly, government has also positioned itself as child advocate. The names of the two major government reports on child custody and access - For the Sake of the Children and Putting Children First - and the recently released "Child-Centered Family Justice Strategy" indicate the degree to which the Canadian government claims to be pursuing reform on behalf of children. How each of these groups conceptualize the child, and the varying perceptions amongst them of what is in a child's "best interests", has therefore been fundamental to the law reform process.  The final reason for focusing on the role our conceptualization of the child has played in the law reform process is because the way in which we conceptualize the child has far reaching implications for the whole of family law. How we understand children  12  influences how the law approaches parenting, violence and abuse, caregiving, and the roles of mothers, fathers, and other caregivers. For example, if we believe that it is in a child's best interests to have regular contact with both of his or her biological parents we may minimize the impact of parental violence or abuse, or diminish the role of a psychological parent, such as a same-sex parent. Furthermore, given the increasing number of children being raised in step-families, single-parent families, and lesbian or gay families, it is of particular importance that our conceptualization of the child does not tie us to one particular model of family. In light of the increasing diversity of family forms and the connections between how we conceptualize the child and the rest of family law, I wanted to consider whether our current conceptualization of the child is limiting, and whether there might be a more appropriate model that better meets the changing needs of Canadian families.  While I have chosen to focus on the role our conceptualization of the child has played in the law reform process, I will inevitably discuss some of the other factors that have contributed to the rise of shared parenting. The role of fathers' rights groups in particular will receive considerable attention given the alleged link between "father absence", an issue raised so frequently by fathers' rights advocates, and children's "best interests".  1.3  Outline of thesis  As discussed above, in this thesis I want to look closely at the relationship between current family law reform projects in Canada and the way in which we conceptualize the child, both legally and socially. In this Chapter I have provided a brief outline of the rise of shared parenting both in Canada and internationally, and have argued that at the centre of this shift towards shared parenting is a change in how we conceptualize the child and his or her "best interests". I will expand on these issues further in later chapters.  In Chapter 2 I will discuss and critically analyze the two historical models for conceptualizing the child that have emerged in the West: the protectionist model and the children's rights model. The protectionist model, which dominated from the seventeenth  13  to nineteenth centuries, viewed children as a combination of both vulnerable and uncivilized, and thus in need of discipline and protection. In the past century,  anew model of conceptualizing the child, the "children's rights" model, has emerged. Based on liberalism's rational, rights-bearing individual, the children's rights model revisions children as independent and autonomous beings, with the right to express their views in relation to matters that affect their lives. The rights model does not abandon protectionism altogether, but it is secondary to the more important notion of rights.  I will conclude Chapter 2 by arguing that both the protectionist and children's rights models are inappropriate models with which to conceptualize the child. Protectionism is paternalistic, de-contextualizes the child by presuming he or she has an inherent "nature", and denies the child a voice. In the context of child custody law, protectionism, with its dual emphasis on protection and discipline, has historically resulted in an almost exclusive paternal right to the custody and guardianship of "legitimate" children.  61  Equally problematic, the children's rights model presumes the social desirability of the liberal individual, and emphasizes rights and rules over relationships and responsibilities, and universal principles over concrete situations. In the context of custody and access law, the emphasis on children's rights has arguably led to a reconfiguration of the best interests of the child test to include several "rights of the child", including the child's "right to contact" with both parents. It has also become very popular in debates about custody and access law to invoke the language of "children's rights". However, given that it is rarely children who are articulating or seeking to exercise their rights, the rhetoric of children's rights is particularly vulnerable to appropriation by interest groups, such as fathers' rights groups, who claim to act on children's behalf.  Given the flaws inherent in both the protectionist and children's rights models, in Chapter 3 I will argue that there is a third, more appropriate, way in which to conceptualize the child based on an "ethic of care". Drawing on the work of Carol Gilligan, Joan Tronto, Selma Sevenhuijsen and Carol Smart, I will consider how the ethic of care might Constance Backhouse, "Shifting Patterns in Nineteenth-Century Canadian Custody Law" in "David Flaherty, ed., Essays in the History of Canadian Law, vol. 1 (Toronto: The Osgoode Society, 1981) 212 at 216; Martha Bailey, "England's First Custody ofInfants Acf (1995) 20 Queen's L.J. 391. 61  14  conceptualize the child, and how this would translate into a family law context. In particular I will focus on the three elements of the ethic of care identified by Gilligan - (i) the centrality of relationships; (ii) the need to base decision-making on the concrete circumstances of people's lives (the "principle of actuality"); and (ii) the importance of the actual activity of care - and consider how each of these elements would relate to the child. I will argue that an ethic of care would view children as connected, social beings, enmeshed in a complex web of relationships, that it would take a contextual approach to the life of the child, and that it would be particularly attentive to the importance of caregiving in children's lives.  Conceptualizing the child through an ethic of care would necessarily require a significant shift in the current legal and social framework. In Chapter 4 I will look more closely at how an ethic of care might be incorporated into Canadian family law decision-making, focusing in particular on Bill C-22, which would amend the custody and access provisions in the federal Divorce Act.  62  Bill C-22 marks the culmination of over a decade  of debate in Canada about child support and custody and access, and therefore gives some indication of the way in which Canadian family law currently regards issues of care. In Chapter 4 I will outline the historical and ideological origins of Bill C-22, and will then consider the extent to which the Bill incorporates an ethic of care in its provisions. I will argue that an ethic of care is largely absent from Bill C-22, and that when care is incorporated, it must be balanced with other criteria, such as the importance of children maintaining relationships with both of their parents. Given the failure of Bill C-22 to adequately incorporate the ethic of care in its provisions, I will suggest how the "best interests" criteria might be amended so that an ethic of care plays a greater role.  Finally, in Chapter 5 I will consider whether amending the "best interests" criteria in Bill C-22 is sufficient in order to incorporate an ethic of care into Canadian custody and access decision-making. In particular I will ask whether the best interests test has the capacity to incorporate the ethic of care within it and, if it does not, whether the test should remain part of Canadian law. In discussing this issue I will argue that the rhetoric 6 2  Bill C-22, supra note 9.  15  of justice, rights and equality, and the pro-contact regime this rhetoric has produced, is so ingrained in the best interests test that it may be impossible for Bill C-22 to ever adequately incorporate an ethic of care. Thus, if Canadian family law is, going to adopt an ethic of care it may be necessary to fundamentally change the basis of custody and access decision-making. This would involve replacing the best interests of the child test with a new decision-making framework that derives from the ethic of care. In discussing this possibility I will consider three legislative proposals that emphasize existing relationships, the "social reality" of the individual family, and the actual activity of care. Drawing on these proposals, I will make some tentative conclusions about how an ethic of care might be incorporated into the Canadian legislative framework.  1.4  Conclusion  This thesis is intended to provide an analysis of the changing nature of our conceptualization of the child, and the role that these changes have played in family law reform debates throughout the western world. It is hoped that it will provide some new insight into the complex dynamics involved in the current family law reform debates in Canada, and some suggestions as to how the reform process might be refocused so that it more adequately meet the needs of children. In the next chapter I will identify and discuss the two historical models for conceptualizing the child that have emerged in the West the "protectionist model" and the "children's rights model" - and consider whether either is an appropriate model with which to understand children and their needs.  16  Chapter II  2.0  Historical and Sociological Conceptions of the Child  2.1  Introduction  For much of history, children have not been of particular interest to academics or policy makers. In fact, the neglect of the study of children within academic circles has often been compared to the earlier ignoring of women's perspectives, which resulted from preoccupation with the public world of work which was largely dominated by men. In 1  the last 400 years, however, there has been increasing academic interest in children. Two models of conceptualizing children and their needs have emerged in the western world:  2  the protectionist model and the children's rights model. The protectionist model, which dominated from the seventeenth to nineteenth centuries, viewed children as a combination of both innocent and uncivilized. Thus, children needed to be both protected and disciplined. By the 1920's, however, the first offerings of the children's rights movement began to emerge. The early rights movement focused largely on the material needs of the children who had lived through the First World War, but by the 1960's the debate had extended to include children's civil and political rights. During the 1970's, as belief in an exclusively protectionist model began to wane, the children's rights model began to dominate. Based on the liberal notion of the rational, rights-bearing individual,  Ann Oakley, "Women and Children First and Last: Parallels and Differences Between Children's and Women's Studies" in Berry Mayall (ed.), Children's Childhoods (London: Falmer Press, 1994); A . Ambert, "Sociology of Socialisation: The Place of Children in North American Sociology" in P.A. Adler & P. Adler, eds., Sociological Studies of Children: Volume 7 (Greenwich: Jai Press, 1986). 1  The focus of this paper is the western conceptualization of the child, thus what is discussed is by no means "universal". It would be interesting to investigate how children are conceptualized in non-westem cultures. Certainly, there are differing religious and cultural norms that might conflict with notions of "children's rights". Even within the West, there is a varying degree of support for children's rights, largely because of a perception that children's rights supplant the authority of parents. Unfortunately, an in-depth discussion of how children in non-western countries may be conceptualized is beyond the scope of this paper. However, for some analysis of the issue see: Abdullahi An-Na-'im, "Cultural Transformation and Normative Consensus on.the Best Interests of the Child" in Philip Alston, ed., The Best Interests of the Child: Reconciling Culture and Human Rights (Oxford: Oxford University Press, 1994) 62; H . Barry & L. Paxson, "Infancy and Early Childhood" (1971) 16 Ethnology 191; Margaret Mead & Martha Wolfenstein, Childhood in Contemporary Cultures (Chicago: University of Chicago Press, 1962); S. Rashid, "Attachment Reviewed Through a Cultural Lens" in David Howe, ed., Attachment Theory and Child and Family Social Work (Aldershot: Avebury, 1996). 2  17  the children's rights model revisioned children as independent and autonomous beings, with the right to express their views in relation to matters that affect their lives. The children's rights model did not abandon protection altogether, but it became secondary to the more important notion of rights.  Neither the protectionist model nor the children's rights model of conceptualizing the child adequately reflects the complexity of children's lives or their fundamental needs. The protectionist model is paternalistic, ignores the child's voice in decision-making, and has a tendency to understand children as a "problem population" in need of discipline and control, while the children's rights model ties children to the abstraction of the rational, autonomous, liberal individual, and thus robs them of their context and devalues the relationships and care that surround them. A third way in which to envision the child recognizes the complex web of relationships in which children exist and listens carefully to their voices. I have called it an "ethic of care" based conceptualization of the child. It draws from the work of "ethic of care" feminists who argue that humans are not abstracted, autonomous individuals, but rather are relational beings, immersed in a complex web of interconnections. Conceptualizing children through an ethic of care would involve focusing on relationships rather than rights, and understanding children in relation to the actual concrete circumstances of their lives, rather than via universal and essentializing principles.  In this chapter I will first outline the two dominant models of conceptualizing the child the protectionist and children's rights models - and will explain why neither model appropriately meets the needs of children, both generally and in the specific context of child custody and access law.  18  2.2  Models for conceptualizing "the child"  While children have always been a fundamental part of human society, it is only recently that the concept of 'childhood' has emerged. Phillipe Aries, who wrote one of the first 3  histories of childhood, Centuries of Childhood, argued that while children have existed across time, the concept of "childhood" is a recent phenomenon. According to Aries, the 4  concept of children's 'difference' from adults has ebbed and flowed throughout history, sometimes present, sometimes absent. For example, in ancient society children were understood as different from adults, and childhood was regarded as a distinct stage of life. During the Middle Ages, however, the concept of childhood largely disappeared. As soon as children could live without the attention of their mothers and nannies, they interacted freely with adults, engaged in adult professions, and dressed like adults. It was not until 5  the late seventeenth century that the concept of childhood as different from adulthood reappeared. Aries argues that childhood, at least in Western Europe, was reframed at this time as a period of incapacity and dependence, during which the child needed both protection and discipline. By the nineteenth century this new understanding of children meant that it was no longer appropriate that children be members of the workforce, so they were removed, through changes to the law, from the labour market and into compulsory education. This period of time marked children's transition from actors in the public sphere to dependents within the private realm of the family.  6  In recent years Aries' work has been criticized by a number of scholars on the basis that his sources did not justify such dramatic generalizations, that the problems inherent in the sources were not adequately dealt with (particularly the fact that he drew the majority of his sources from the upper classes), and that he allowed his own political and ideological Chris Jenks, Childhood (London: Routledge, 1996) at 59-60; Martin Hoyles, Changing Childhood (London: Writers and Readers Publishing Co-op., 1979) at 16. Phillipe Aries, Centuries of Childhood: A Social History of Family Life (London: Cape, 1973) (first published 1960). Ibid, at 124. Malcolm Hill & Kay Tisdall, Children and Society (Longman: London, 1997) at 15. Linda Pollock, Forgotten Children: Parent/Child Relationsfrom1500 to 1900 (Cambridge: Cambridge University Press, 1983); Shulamith Shahar, Childhood in the Middle Ages (London: Routledge, 1990); S. Wilson, "The Myth of Motherhood: The Historical View of European Child-Rearing" (1984) 9 Social History 181-198; Russell Smandych, "Accounting for Changes in Canadian Youth Justice: From the 3  4  5  6  7  19  biases to influence his conclusions. Aries' work is thus no longer the seminal treatise it 8  was originally presumed to be. However, while other theorists have opposing views as to exactly how and when childhood emerged as a social phenomenon, they do share Aries' 9  ultimate conclusion that while earlier societies may not have entirely lacked a concept of childhood, they certainly lacked our modern concept of childhood.  As stated earlier, the last four hundred years have been dominated by two competing conceptualizations of children: the protectionist model, which has its origins in the Reformation, and the children's rights model. The two models envision the child in markedly different ways, though they do share some similarities. The protectionist model is rooted in children's vulnerability and dependency. It understands childhood as a time of difference, during which the child undergoes a process of 'becoming'. In contrast, the children's rights model, while still acknowledging children's diminished capacity and potential vulnerability, treats children as capable, according to their maturity and age, of exercising many of the rights we associate with adulthood. It affords to children some of the autonomy and rationality usually associated with the liberal individual. The following section outlines each of these models in greater detail and also shows why neither of them is an appropriate conceptualization of the child both generally and in the context of child custody and access law.  2.2.1 The Protectionist Model  As discussed above, when childhood re-emerged as a concept in the 1500's it was understood largely in the context of children's difference from adults. During this time Invention of Childhood to the Disappearance of Childhood" in Russell Smandych, ed., Youth Justice: History, Legislation, and Reform (Toronto: Harcourt Canada, 2001) 4; Hill and Tisdall, supra note 6. Paul Spagnoli, "Philippe Aries, Historian of the Family" (1981) 6 Family History 434. Spagnoli found that while writing his famous work, Aries was a member of an ultraconservative French Nationalist organization known as the Actionfrancais.According to Spagnoli, Aries' book provides a very conservative version of French history that idealizes family and community, and was influenced by his own experiences growing up in a wealthy, Catholic family. See, eg, Lawrence Stone, The Family, Sex and Marriage in England in 1500-1800 (London: Weidenfeld and Nicolson, 1977); David Archard, Children: Rights and Childhood (London: Routledge, 1993); H. Hendrick, "Constructions and reconstructions of British Childhood: An Interpretative Survey, 1800 to present" in Allison James & Alan Prout, eds., Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood (London: The Falmer Press, 1990); Pollock, supra note 7. 8  9  20  "children..., it would seem, escaped into difference." The nature and origins of 10  children's difference were not, however, agreed upon.  During this period several contradictory understandings of the "natural" state of children prevailed, though as Jenks notes, the different theories largely reflected each theorist's understanding of the larger social world, rather than any particular truth about children.  11  First, there were those who considered children to be "little devils", tainted by original sin. These theorists believed children were born with sin and were thus in need of harsh discipline in order to 'beat the devil out' of them. This model of understanding children, which was prevalent in sixteenth and seventeenth century Puritan Europe, produced harsh methods of discipline, with an emphasis on physical punishment. Arguably this model continues to find favour today, particularly amongst those who endorse a "law and order"  approach to juvenile justice. A second, and closely linked, model is the idea of  the child as "little savage". Jenks argues that conceptualizing the child as a "little savage" has its origins in nineteenth century social thought in which the "early 'evolutionist' anthropologist, a self-styled civilized person, simply 'knew' the savage to be different to himself, on a scale of advancement...; so we also, as rational adults, recognize the child as different, less developed, and in need of explanation." Proponents of this view argue 13  that children are not so much bad, as just inherently wild and uncivilized. Thus children need discipline and direction in order to civilize them, rather than rid them from sin. The third way of conceptualizing children's nature is captured by Rousseau's concept of the "natural child". According to Rousseau children embody a natural goodness that sets  10  Jenks, supra note 3 at 65.  Chris Jenks, ed., The Sociology of Childhood: Essential Readings (London: Batsford, 1982) cited in Carol Smart, Bren Neale & Amanda Wade, The Changing Experience of Childhood: Families and Divorce (Cambridge: Polity Press, 2001) at 2. 11  By a "law and order" approach to juvenile justice, I refer to the increasing tendency to see youth as a "problem population" that should be dealt with through the law, rather than by way of social intervention. This shift occurred in Canada most notably in 1984 when the Young Offenders Act, R.S.C. 1985, c. Y - l (YOA) was introduced. Whereas the "juvenile delinquent" was once viewed as most conducive to rehabilitation, the introduced of the YOA created "young offenders" who were viewed as deviant adolescents who were "responsible for their actions and should be held accountable" (YOA s. 3). For a discussion of this transition see Bryan Hogeveen & Russell Smandych, "Origins of the Newly Proposed Canadian Youth Criminal Justice Act: Political Discourse and the Perceived Crisis in Youth Crime in the 1990s" in Smandych, supra note 7 at 145-48. Jenks, supra note 3 at 4. 1 2  13  21  them apart from adults. They are "little angels", and should be left to enjoy their childhoods untainted by adult interference or control:  Nature wants children to be children before they are men [sic]. If we deliberately pervert this order, we shall get premature fruits which are neither ripe nor well-flavoured, and which soon decay.. .Childhood has ways of seeing, thinking, and feeling peculiar to itself; nothing can be more foolish than to substitute our ways for them. 14  A final group of theorists understood children as "embryonic" beings. Rather than being understood as inherently good or evil, children were just presumed to be "part-formed", in a constant process of "becoming". This understanding of the child is well captured by Durkheim:  [Childhood is] a period of growth, that is to say, the period in which the individual, in both the physical and moral sense, does not yet exist, the period in which he [sic] is made, develops and is formed.. .In everything, the child is characterized by the very instability of his nature, which is the law of growth. The educationalist is presented not with a person wholly formed - not a complete work or afinishedproduct - but with a becoming, an incipient being, a person in the process of formation. 15  This conceptualization of the natural state of children is derived from developmental psychology, which ties the social nature of children to their biological growth and development. Though the precise details of the stages of child development are the topic of ongoing debate,  16  proponents of the "embryonic" model understand childhood to be  made up of a series of transitions from embryonic being to full-fledged adult.  While each theory of the natural state of children differs, they all share the common goal of child protection. Children's diminished capacity, whether because of innocence, weakness or lack of civilization, makes them vulnerable to both harm and deviance. Thus  Jean-Jacques Rousseau, Emile (London: JM Dent & Sons, 1957), translated by Barbara Foxley, (first published in this edition in 1911). Arguably, Rousseau's vision of childhood was as gendered as the language he used to describe it. Female children were largely absentfromRousseau's discussions and it was clear that the "freedom" of childhood he envisaged did not extend equally to both genders. Emile Durkheim, "Childhood" [1911], in W.S.F. Pickering (ed.), Durkheim: Essays on Morals and Education (London: Routledge, 1979) at 150. While advocates of the embryonic model all agree that there are stages through which children pass from infancy to adulthood, they do not agree on how many stages there are or what each includes. Freud posited five stages, Sullivan eight, Piaget six, Kohlberg six and Erikson eight. For more details on these differences see: Norman Denzin, Childhood Socialisation (San Francisco: Jossey-Bass, 1977) at 8. 14  15  16  22  the liberation of children from adulthood during this historical period led, in turn, to the restraint of children.  17  As Rose explains:  Childhood [became] the most intensively governed sector of personal existence. In different ways, at different times, and by many different routes varyingfromone section of society to another, the health, welfare, and rearing of children has been linked in thought and practice to the destiny of the nation and the responsibilities of the state. The modern child has become the focus of innumerable projects that purport to safeguard itfromphysical, sexual, and moral danger, to ensure its 'normal' development, to actively promote certain capacities of attributes such as intelligence, educability and emotional stability. 18  Given children's incapacity, as well as their need to be protected from the adult world, it is not surprising that proponents of the protectionist model of conceptualizing the child advocate that adults, particularly parents, make decisions for and speak on behalf of children: To be a child is to be at risk, dependent, and without capacity to decide what is "best" for oneself. To be an adult is to be a risktaker, independent, and with capacity and authority to decide and to do what is "best' for oneself. To be an adult who is a parent is to be presumed in law to have the capacity, authority and responsibility to determine and to do what is good for one's children. 19  This conception of the child is premised on the child's incapacity to speak for himself or herself, or even to know what is "best". The authority to speak for children is thus put in the hands of the child's parents, traditionally the father. The child's views are unimportant. The unwillingness to listen to children is a key element of the protectionist model, and exposes its inherent (and often literal) paternalism. It is not surprising that if children are understood as uncivilized, weak, dependent or deviant, they are unlikely to be given a voice in decision-making about their lives. This particular perception of the child is evidenced in nineteenth century child custody laws which gave fathers almost exclusive rights to the custody and guardianship of their "legitimate" children, without  Jenks, supra note 3 at 68. Nikolas Rose, Governing the Soul: The Shaping of the Private SW/(London: Routledge, 1989). Joseph Goldstein, "Medical Care for the Child at Risk: On State Supervision of Parental Autonomy" (1977) 86 Yale LJ 645 at 645. 18  19  23  any consideration of what might be in the child's "best interests". For example, during 20  the nineteenth century it was an absolute rule in several Canadian provinces that "the father shall have the custody and control of his infant children." Fathers were presumed 21  to be the disciplinarians of their children, their ultimate (economic) protectors, and therefore their proper legal guardians. Given this view, it is not surprising that nineteenth century custody laws did not consider the views of children, or even the question of what was in their "best interests". It was simply presumed that paternal rights were in the best interests of everyone.  The protectionist model of conceptualizing the child has waned in popularity in recent years as the competing ideology of children's rights has grown, but it remains entrenched in many laws dealing with children. Within family law and child protection, children often continue to be understood as innocent victims in need of protection, while the juvenile justice system,  23  child prostitution laws,  24  curfew laws,  25  and the regulation of  children within schools, continue to treat children as little savages or devils in need of strong guidance and a civilizing hand.  Constance Backhouse, "Shifting Patterns in Nineteenth-Century Canadian Custody Law" in David Flaherty, ed., Essays in the History of Canadian Law, vol. 1 (Toronto: The Osgoode Society, 1981) 212 at 216; Martha Bailey, "England's First Custody of Infants Act" (1995) 20 Queen's L.J. 391. See, eg, An Act Respecting Infants and their Estates, S.M. 1878,41 Vict., c. 7, s.2, 11; The Judicature Ordinance, R.O.N.W.T. 1888, c. 58, s. 373, 382. This perception began to change in the late nineteenth century when a number of provinces allowed, in limited circumstances and often only until a child reached a certain age (usually between 7 and 12), the custody of children to be granted to mothers. Boyd argues that these changes "reflected a change in social views about how best to ensure the welfare of children in the interests of emerging industrial capitalism, as much as they reflected an acknowledgement of women's work in relation to children or an outright improvement in the status of mothers and children": Susan Boyd, Child Custody, Law, and Women's Work (Don Mills, ON: Oxford University Press, 2003) at 24. With the advent of the YOA in 1984, the Canadian youth justice system moved away from protectionism and towards more of rights-based system. However, as Hogeveen and Smandych argue, the emerging rights discourse that the YOA introduced "did not deny the importance of intrusions into the lives of the deviant youth, but increasingly saw the youth as a legal subject": Hogeveen and Smandych, supra note 12 at 147. A similar transition has taken place in the area of child custody and access law, albeit with a different impetus. While children are increasingly recognized as legal subjects in family law, intrusion into their lives is justified in order to protect their relationships with their fathers. For a discussion of this issue see: Susan Boyd, "Backlash and the Construction of Legal Knowledge: The Case of Child Custody Law" (2001) 20 Windsor Y.B. Access Just. 141 at 145. Dianne Martin, "Both Pitied and Scorned: Child Prostitution in an Era of Privatization" in Brenda Cossman & Judy Fudge, Privatization, Law, and the Challenge to Feminism (Toronto: University of Toronto Press, 2002) 3 55. Over 700 cities in the United States have curfew laws that restrict teenagers to their homesfrom10pm or 11pm until sunrise, unless accompanied by an adult. m  2 1  2 2  2 3  2 4  2 5  24  While the protectionist model appropriately recognizes the child's unique vulnerability to abuse and exploitation, it is a largely inappropriate way in which to conceptualize the child. First, it takes a very paternalistic attitude towards children, denying children any agency in their own lives. It treats children as objects rather than subjects, as "human becomings" on their way to adulthood, but lacking the capacity to get there without the hand of control and discipline guiding their way. While children are uniquely vulnerable in our society, this does not justify a complete denial of autonomy. Children's capacity evolves over time and as they get older they should be afforded a degree of autonomy commensurate to their capacity to exercise it. Treating children with paternalism treats them as something other than human, as the "savages" of earlier ages, and fails to recognize that they are social beings, involved in their world, and capable of responding to it.  The second concern with the protectionist conceptualization of the child, which was briefly discussed above, is that it denies the child a voice. It presumes that children are incapable of speaking for themselves, and that their needs and desires are best represented by adults. Giving adults the authority to speak for children presumes that these adults are not abusive, and that their views will not be clouded by their own needs or desires. This is an enormous assumption, particularly in the context of custody and access law which some parents use to continue to harass the other parent, that essentially abandons children to adults. It relies on adults acting in children's interests rather than their own, and presumes that children cannot and should not voice their own opinions. In fact, many children, even young children, are able to articulate their concerns with a sophistication that adults rarely expect. But even if they do not speak articulately it is still important that they be heard. In my view, it is important that children play a role in decision-making about their lives, not as final arbiters, but as active participants.  Finally, the protectionist model essentializes children. By prescribing the child, an inherent "nature" the protectionist model presumes a universal child, independent of his or her individual circumstances, or gender, class, race, or ethnic background. Such; an  25  approach may mean that a certain model of childhood, possibly based on a white, middleclass, will prevail. This is problematic for any child who exists outside of this framework. Conceptions of childhood across cultures have many common elements, but they nevertheless vary in fundamental ways. While all societies have contrasting 26  expectations for male and female children, particular personal characteristics, economic functions or social activities may be seen as "feminine" in one culture and "masculine" in 97  another.  Even within distinct geographic boundaries there may be differences in  conceptions of childhood depending on the ethnic, religious, class and cultural characteristics of individual families. For example, in many indigenous cultures care of 28  young children is shared informally amongst a wide set of people, and the link between mother and child that is so fundamental to the western conception of childhood, is less 90  important.  These traditions continue amongst indigenous peoples in western countries  such as Canada and Australia. Given the diversity of cultural conceptions of childhood, even within western society, it is problematic to understand children as universal beings with shared characteristics independent of context. In conclusion, while the protectionist model continues to find limited favour today it is an inappropriate way in which to conceptualize the child. It is paternalistic and essentialist, and denies the child a voice. In response to some of these criticisms, a new conceptualization of the child has emerged in the past century. It conceptualizes the child as an autonomous, rights-bearing individual, capable of speaking and entitled to be heard.  2.2.2 The Children's Rights Model  While the protectionist conceptualization of children prevailed from the 1600's to the late 1800's, the conceptualization of children as rights-bearing individuals has dominated debates about children in the last century. As the 1900's progressed there took place a Hill & Tisdall, supra note 6 at 17-18. Margaret Mead, Male and Female (Harmondsworth: Penguin, 1962). See for example, Katz's consideration of British conceptions and experiences of childhood: I. Katz, "How do Young Asian and White People View Their Problems? A Step Towards Child-focused Research" in Ian Butler & Ian Shaw, eds., A Case ofNeglect? Children's Experiences and the Sociology of Childhood (Aldershot: Avebury, 1996). 2 6  2 7  2 8  2 9  See G. Dahlberg, Woman the Gatherer (New Haven: Yale University Press, 1981).  26  gradual shift from seeing children as vulnerable and lacking capacity, to a perception that they might have individual and independent rights not dissimilar to those afforded to adults. The idea that children lacked capacity to make decisions or exercise rights of agency was rethought and, while children were still recognized as in need of protection, increasing efforts were made to impart to children some degree of autonomy. This did not mean a complete abandonment of protection. Instead the child was revisioned as in need of rights as a means of protection. The children's rights movement closely mirrored the general growth of rights rhetoric in modern, western society. Throughout the twentieth 31  century there has been an increase in recognition of minority rights and women's rights, often through anti-discrimination legislation, as well as the rise of the concept of universal, human rights. It is thus not surprising that the child might be revisioned during this time as rights-bearing member of society.  According to Michael Freeman, the origins of the children's rights movement can be traced back to the mid-nineteenth century. The "child-saving" movement of the mid1800's and the growth of compulsory education contributed to a growing awareness of the material needs of children. Children's needs were still formulated largely within a protectionist framework, but there was a growing awareness that children might in fact have a "right" to the material goods being bestowed upon them. The notion of 33  "children's rights"firstattracted international attention following the First World War. In 1924 the Fifth Assembly of the League of Nations adopted a declaration on the rights of children. The declaration reflected a concern with the interests of those children whose 34  lives had been afflicted by the devastation of the war. It focused largely on the material needs of children, proclaiming for example, that children "must have" means requisite for their normal development, such as food and shelter, as well as nursing and help for those  Chris Barton & Gillian Douglas, Law and Parenthood(London: Butterworths, 1995) at 423. The increase in rights rhetoric is best represented by the dramatic increase in United Nations human rights declarations and conventions, such as the Universal Declaration on Human Rights 1948, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, and the two Optional Protocols to the ICCPR. Michael Freeman, The Rights and Wrongs of Children (London: Frances Pinter, 1983) 18-19. The material needs referred to in these early children's rights documents included food for the hungry, nursing for the sick, help for the disabled, and shelter for the orphan: Freeman, ibid, at 19. Declaration of Geneva (1924). 3 0  3 1  3 2  3 3  34  27  who were sick and disabled. Thirty-five years later the successor to the League of Nations, the United Nations, adopted a second Declaration of the Rights of the Child which expanded on the first declaration and for the first time included civil rights for children (eg, rights to a name and nationality). It also introduced the "best interests of 35  the child" test which now dominates modern family and child protection law. The 1959 Declaration was based on the premise that "mankind owes to children the best it can lift  give".  Implicit in this premise was an emphasis on duties to children, most of which  involved protecting children from harm, rather than investing them with rights or freedoms. Although the Preamble to the Declaration refers to rights and freedoms, the ten principles set out embraced neither. Between 1959 and 1989, when the United Nations Convention on the Rights of the Child was introduced, dramatic changes took place in the way in which children were ^7  conceptualized.  During this period several significant legal decisions cemented the  position of children as rights-bearing individuals. For the first time courts began to recognize the rights of children to varying degrees of autonomy and freedom. In the 1969 Tinker v. Des Moines Independent School District decision the Supreme Court of the United States held that school students are "persons" under the Constitution and possess TO  constitutional rights "in as well as out of school".  Seven years later in Planned  Parenthood of Central Missouri v. Danforth the US Supreme Court held that constitutional rights do not "mature and come into being magically only when one attains the state-defined age of majority."  Similarly, in England, the Gillick v. West Norfolk and  Wisbech Area Health Authority ["Gillick"] decision in 1986, which considered a teenager's right to consent to medical treatment without her parent's knowledge, signified an important step towards recognizing children's autonomy. The majority in the House 40  of Lords held in Gillick that: Declaration on the Rights of the Child, 20 November 1959, GA Res. 1386(XIV). Preamble, ibid. Convention on the Rights of the Child, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force 2 September 1990 ["CRC"]. Tinker v. Des Moines Independent School District, 393 US 503, 509 (1969). Planned Parenthood of Central Missouri v. Danforth, 428 US 52, 75 (1976). Gillick v. West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL). 35  3 6  37  38  39  40  28  As a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to enable him [sic] to understand fully what is proposed. 41  "G/7/z'c/c-competence" has been endorsed to varying degrees throughout the world. While these cases can be viewed as a piecemeal approach to children's rights - children are certainly not being granted the same rights as adults - they represent an important shift in the law's conception of the child. The protectionist model's understanding of the evolving nature of childhood is still present, but the child is now understood to evolve, while still a child, to a stage where he or she is capable of exercising his or her rights without adult intervention.  At the same time that the conception of the rights-bearing child was taking hold, a simultaneous movement of children's liberation was also under way. Children's liberationists drew no distinctions between the child and the adult. They supported identical rights for children and adults (e.g., to work, to vote, to have lawful sexual relationships), rather than just strengthened ones based on children's psychological and physical vulnerability. One of the movement's strongest advocates, John Holt, urged 42  "the law [to] grant and guarantee to the young the freedom that it now grants to adults to make certain kinds of choices, do certain kinds of things, and adopt certain kinds of responsibilities." In particular, children's liberationists focused on the child's right to 43  work. It was their view that separating children from work denied them what Farson referred to as the "right to economic power". Interestingly, the children's liberationists 44  did not discuss the lack of power experienced by children who were forced to work for economic reasons, highlighting the degree to which their arguments were premised on western, middle-class assumptions. Children's liberationists were often criticized for being politically naive, and ignoring psychological evidence relating to child development. There was also a concern that children's liberation would "abandon  41  Ibid.  The leading advocates of the children's liberationist movement in the 1970's were John Holt, Martin Hoyles and Richard Farson: John Holt, EscapefromChildhood: The Needs and Rights of Children (London: Penguin Books, 1974); Hoyles, supra note 3; Richard Farson, Birthrights (Harmondsworth: Penguin, 1979). Holt, ibid, at 114. Farson, supra note 42 at 154 4 2  4 3  4 4  29  children to their rights". As Philip Veerman wrote, "the unlimited rights the Kiddie Libbers want to give to children withhold from them the most essential right: to be a child."  45  Despite criticisms of the liberationist's conception of the child, the liberationist  movement did dramatically widen the notion of children's rights beyond protection, and arguably played a vital role in the debates surrounding the United Nations Convention on the Rights of the Child.  46  The momentum that eventually led to the United Nations Convention on the Rights of the Child began in 1979 with the International Year of the Child. During that year the Polish government had proposed a convention for children's rights and the U N General Assembly agreed, authorizing the Commission on Human Rights to draft such a convention. It took almost ten years for the final draft to be completed, but in 1989 the U N General Assembly gave approval to the final version. The Convention on the Rights of the Child is an extraordinary document in the sense that it is designed to have universal applicability. It is intended to speak to all children, irrespective of their gender, race, religion, class, or country of origin. While it does acknowledge the "difference" of childhood, the Convention is largely written in the language of liberal rights, and many of the rights granted to children under the Convention are those usually associated with the adult of liberal theory. For example, under the Convention children have a right to privacy (Article 16), freedom of expression (Article 13), freedom of association (Article 15), and freedom of thought, conscience and religion (Article 14). There are also some rights that are specific to children. For example, signatory states must ensure that a child is not separated from his or her parents (unless it is in the child's best interests) (Article 9), and as far as possible, the right to know and be cared for by both parents (Article 7). The Convention includes remnants of the protectionist model, most notably in the Preamble where it is stated that "childhood is entitled to special care and assistance", and that "the child, by reason of his [sic] physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth".  Philip Veerman, The Rights of the Child and the Changing Image ofChildhood (Dordrecht: Martinus Nijhoff, 1992) at 397 (emphasis in original). Hill & Tisdall, supra note 6 at 27. 4 5  4 6  30  Perhaps the most significant article in the Convention is Article 12, which requires states to "assure to the child who is capable of forming his or her own views the right to express those views freely, on all matters affecting the child, the views of the child being given due consideration in accordance with the age and maturity of the child." Article 12 is a strong statement in favour of a child's right to self-determination and is unlike anything that appeared in earlier international documents relating to children. It is tempered somewhat by Article 3, which directs that the "best interests of the child" be the primary consideration in decision-making, and the Preamble, which acknowledges that "due account" should be taken of the "importance of the traditions and cultural values of each people for the protection and harmonious development of the child." The fact that "traditional and cultural values" have often undermined children is not acknowledged. For example, certain cultural and religious practices that justify treating female children differently from male children, or even harming female children, may be permitted 47  under the Convention based on the importance of maintaining "traditional and cultural values".  The advent of the Convention on the Rights of the Child has dramatically changed the way in which society and the law conceptualize the child. As one children's rights advocate put it, people have begun to talk of protecting children's rights as well as, or in substitution for, protecting children. While children have not completely escaped 48  protectionism, as the Convention itself indicates, society increasingly understands children as autonomous beings entitled to certain rights and freedoms that have traditionally been the domain of adults. Many aspects of the Convention have not yet found their way into state law, but the Convention plays a significant role in the formulation of debates in countries throughout the world. Some aspects of the Convention have been included in the law of various countries, most particularly in custody and access law. The child's right to know and be cared for by both parents, to not be separated from his or her parents, and to have a role in decision-making that affects his or her life have been incorporated into family law legislation in Australia, the U K , and The most obvious example is female genital mutilation, which some commentators have argued can be justified because it is based on "cultural and traditional values". Farson, supra note 42. 4 7  4 8  31  some parts of the United States.  In Canada, s. 16(10) of the Divorce Act, which states  that "in making a custody order.. .the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child", arguably also implies a child's "right to contact". The proposed 50  amendments to the Canadian Divorce Act also indicate a willingness to incorporate children's rights into Canadian law custody and access law. For example, s. 16.2 of the 51  proposed legislation, which lists a series of factors that must be considered when determining what is the "best interests of the child", requires the court to take into account "the benefit to the child of developing and maintaining meaningful relationships with both spouses", and the child's "views and preferences". 52  53  While the conception of children as rights-bearing individuals has generally been welcomed there has been some opposition. The strongest opposition has come from those who argue that granting children rights will necessarily result in the erosion of parental authority, and lead to state intrusion in the family. These arguments have come from 54  religious and social conservatives in several countries, most prominently the United States. For example, Bruce Hafen, an American academic in the area of children's 55  rights, has argued that the Convention forces parents to defer to the child's preferences about how he or she should be raised. He also argues that the Convention lowers the 56  threshold at which the State can intervene in the family. In his view, the Convention  See, Family Law Reform Act 1995 (Cth); Washington State Parenting Act 1987, Wash. Laws C.460; The Children Act 1989 (UK). Divorce Act, R.S.C. 1985 (2 Supp.), c. 3, s. 16(10). Bill C-22, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and to Amend other Acts in consequence, 37 Pari., 2002 ["Bill C-22"]. Bill C-22, s. 16.2(2)(b). Bill C-22, s. 16.2(2)(f). Concerns about children's rights serving as a tool by which the state can intrude into the family is arguably based on an extremely rigid conceptualization of the public/private divide. Such an approach has been widely criticized by feminists as its tends to make invisible women's oppression within the family and diminish the value of women's unpaid labour within the home: see, eg, Susan Boyd, "Challenging the Public/Private Divide: An Overview" in Susan Boyd, ed., Challenging the Public/Private Divide: Feminism, Law, and Public Policy (Toronto: University of Toronto Press, 1997) 3 at 3-24. For a discussion of the criticisms of the CRC by the Christian Right see: Doris Buss, '"How the UN Stole Childhood': The Christian Rights and International Rights of the Child" in Jo Bridgeman & Daniel Monk, Feminist Perspectives on Child Law (London: Cavendish Publishing, 2000) 271. See, eg, Bruce Hafen & Jonathan Hafen, "Abandoning Children to Their Autonomy: The United Nations Convention on the Rights of the Child" (1996) 37 Harv. Int'l L. J. 449. 4 S  50  nd  51  th  5 2  5 3  5 4  5 5  5 6  32  permits state intervention i f a child makes the argument that the conduct o f his or her parents is unreasonable or not i n the child's interest. It is not necessary to show that 57  parents are being abusive or neglectful. Religious conservatives also argue that parental authority w i l l be undermined by granting children rights, though they tend to focus on the implications o f adolescent sexual and reproductive rights in particular. For example, 58  Austin Rose, Director o f Catholic Family Human Rights Institute, argues that sexual and reproductive rights for adolescents are "a blatant attempt to separate parents from their children on issues o f sexual health and education."  59  There is little indication that children's rights create the kinds o f situations Hafen and the religious conservatives envision. In fact, the Convention was carefully drafted to ensure that the rights o f parents remain significant to children's lives. For example, Article 5 states that: States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, 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. A n d Article 9 states that a child: [S]hall not be separatedfromhis or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.  Articles 5 and 9 make it clear that primary responsibility for and authority over children remains in the hands o f parents, and it is only i f there is some form o f abuse or neglect that authority passes to the State. Article 5 also indicates that it is only as the child's capacity evolves that he or she can exercise some o f the rights granted under the Convention. Despite the arguments o f the religious conservatives, the Convention does Ibid, at 462-64. The same groups also tend to oppose the rights of women and lesbians and gays, all of whom are perceived as subverting the social order: Buss, supra note 55 at 272. Quoted in Concerned Women For America, The End of Innocence: How the UN Stole Childhood, 15 July 1999 (available at: www.cwfa.org). 57  58  9  33  not actually deal with adolescent sexual freedom. While it includes articles that protect children from sexual abuse and exploitation, it does not explicitly deal with adolescent reproductive or sexual rights. Finally, the Convention is clearly premised on the traditional, hetereosexual, nuclear family. As Olsen argues, it "presuppose [s] a very conventional notion of the family as the centre of affective life". There is thus little 60  indication that the Convention is designed to create the kind of family chaos that the religious and social conservatives envisage.  The second voice of opposition to the conceptualization of children as rights bearing individuals has come from feminists. Much of the feminist opposition to children's rights derives from their skepticism about rights in general. Feminists of various persuasions have argued that adopting the language of rights ignores the relational nature of human beings, and further entrenches in society the liberal notion of the rational, autonomous individual. It is this second argument that I want to consider in greater detail, and which forms the basis of my alternative conceptualization of the child.  2.3  Feminist Critique of Rights Framework  The language of "rights" constitutes one of the most powerful discourses in modern society. As Michael Freeman writes, rights are particularly valuable "moral coinage" for those without other means of power. By adopting the language of rights the children's 61  rights movement has drawn important attention to the plight of children, and placed that plight within a framework that has particular resonance in western, liberal society. Some feminists, however, have some reservations about the ability of "rights" to adequately meet the needs of children, as well as concerns about whether a rights-based model is ideologically desirable. In discussing the desirability of understanding children's needs in the context of "rights" I will first consider feminist critiques of rights in general and then discuss whether these arguments apply to children's rights.  Frances Olsen, "Children's Rights: Some Feminist Approaches to the United Nations Convention on the Rights of the Child" (1992) 6 Int'l J. L. & Fam. 192 at 195. Freeman, supra note 32 at 32.  6 1  34  Feminists have a complex and ambiguous relationship to legal rights. On the one hand, most of the progress women have made in recent history has come from being granted liberal legal rights. On the other hand, the notion of liberal rights and liberalism as a whole are problematic for many feminists. As Kiss highlights, many feminists of varying persuasions are skeptical about liberal rights: Feminists who embrace an ethic of care contrast their approach with an ethic of rights which they seek to supplement or even supplant. Cultural feminists and feminist communitarians criticize rights for being overly abstract and impersonal and for reflecting and endorsing a selfish and atomistic vision of human nature and an excessively conflictual view of social life. Feminist legal scholars argue that rights analysis obscures male dominance, while feminist post-structuralists charge that rights language is bound up with socio-linguistic hierarchies of gender and with the outdated patriarchal fiction of a unitary self. Finally, many theorists argue that feminist political strategies should not be centered around rights, claiming that such an approach reinforce a patriarchal status quo and, in effect, abandons women to their rights. (footnotes omitted) 62  Few feminists would abandon rights altogether, but many are skeptical of the benefits of understanding ourselves exclusively as rational and independent rights-bearing individuals. Several themes emerge from the feminist critique of rights. First, a rights based framework presumes the social desirability of the liberal individual. Second, it emphasizes rights and rules over relationships and responsibilities, and abstract, universal principles over concrete situations. And third, rights, without the means to exercise them, create gaps between legal principle and actual practice. For instance, while children have rights, they are largely inchoate or exercised by adults on their behalf. They are thus vulnerable to appropriation by interest groups who claim to act in the interests of children. In this sense, minority groups and other groups facing systematic discrimination, including children, are often said to have been "abandoned to their rights".  2.3.1 Rights and the Liberal Individual  Embracing rights necessarily involves embracing, at least to some degree, the notion of the rational and autonomous liberal individual. This is problematic because it ignores the  Elizabeth Kiss, "Alchemy or Fool's Gold? Assessing Feminist Doubts About Rights" in Mary Lyndon Shanley & Uma Narayan, eds., Reconstructing Political Theory: Feminist Perspectives (University Park: Pennsylvania State University Press, 1997) 1 at 2.  6 2  35  connections between people. Thus, in embracing rights we fail to challenge the 63  dominance of liberalism's assumptions about human nature, and pursue what many feminists believe is a morally undesirable image of self and society.  According to Nancy Hirschman, the concept of (liberal) rights dictates that we must respect one another not because we are connected but because of rights which highlight the lines of demarcation between us.  64  Rights provide us with a language of distrust and  competition rather than of relationship. They construct us as bounded selves requiring protection from the encroachment of others, who are seen as threats to our autonomy and integrity. As Robin Dillon argues, "staking our worth as persons on being rights-bearers may...make it difficult to envision ourselves as being-in-relation with others and to value ourselves as connected with others." Feminists are careful, however, to acknowledge 65  that replacing rights with an exclusive focus on connection may also be harmful to women. While some of the connections that tie us to others are life-affirming, others are invasive and overpowering. For example, many women are imprisoned by their 66  connections to abusive partners, or limited by the responsibilities that stem from their connections to children. It is therefore important to recognize that not all connections should be preserved. Feminists argue, however, that the atomistic nature of rights means that connection is simply denied.  Children's rights advocates have tended to accept the liberal understanding of the individual without question. The image of the rights-bearing child as understood by the children's rights movement is that of the liberal citizen: a rational, autonomous individual, free and separate from others and the state. For example, children's rights advocate Michael Freeman argues, "[fjhe question we should ask ourselves is: what sort of action or conduct would we wish, as children to be shielded against on the assumption that we would want to mature to a rationally autonomous adulthood and be capable of  Elizabeth Kingdom, What's Wrong with Rights? Problems with Feminist Politics of Law (Edinburgh: Edinburgh University Press, 1991). Nancy Hirschmann, Rethinking Obligation: A Feminist Methodfor Political Theory (Ithaca: Cornell University Press, 1992) at 232. Robin Dillon, "Towards a Feminist Conception of Self-Respect" (1992) 7 Hypatia 52 at 57. Robin West, Caring For Justice (New York: New York University Press, 1997) at 2. 6 3  6 4  6 5  6 6  36  deciding on our own system of ends as free and rational beings?" By framing children's 67  rights in this manner Freeman assumes "that children will want to mature into this epitome of liberal individualistic philosophy, and secondly, that such an individual is morally desirable." Such a vision of the "ideal adult" overemphasizes the autonomy of 68  individuals by downgrading the network of relationships and dependencies in which individuals are nurtured, supported and formed throughout their lives. By accepting this 69  vision of the child-becoming-adult, children remain tied to liberalism's assumptions about human nature, and a society in which social relationships are marginalized.  2.3.2  Rights Over Relationships  As suggested above, in accepting the liberal model of society, rights-based arguments fail to recognize the inherently social nature of human beings. They ignore the complex web of relationships in which all people exist, and the fact that we come into being in a social context. As Jennifer Nedelsky argues, some of our most essential characteristics, such as our capacity for language and the conceptual framework through which we see the world, 7ft  •  are developed through our interactions with others.  Feminists like Nedelsky have  argued that women need to be freed from the confines of liberalism to shape their own lives rather than accept the definition given to them by others (men and male-dominated society in particular). Feminists thus need a new language with which to express their need for freedom, but a freedom grounded in social context. Nedelsky emphasizes that "social context cannot simply mean that individuals will, of course, encounter one another. It means, rather, that there are no human beings in the absence of relations with others. We take our being in part from those relations." The feminist critique of liberal 71  Michael Freeman, The Moral Status of Children (The Hague: Martinus Nijhoff, 1997) at 38. Smart, Neale & Wade, supra note 11 at 108. Selma Sevenhuijsen, Citizenship and the Ethics of Care: Feminist Considerations about Justice, Morality and Politics (London: Routledge, 1998); Joan Tronto, Moral Boundaries (London: Routledge, 1993); Iris Young, Intersecting Voices (Princeton, NJ: Princeton University Press, 1997); Judith Squires, Gender in Political Theory (Cambridge: Polity, 1999). Jennifer Nedelsky, "Reconceiving Autonomy: Sources, Thoughts and Possibilities" (1989) 1 Yale J. L. & Feminism 7 at 8. Ibid, at 9. 6 7  6 8  6 9  7 0  71  37  rights is thus a strategy of inclusion of those who might be excluded from the liberal tradition.  Perhaps more than any other social group, children exist within a relational context. Children's lives are made up of a web of interdependent relationships that are essential to their growth and development. To conceptualize children in any way that does not acknowledge this would seem to be lacking a fundamental element of children's lives. However, a rights framework has the potential to lose sight of the relationships between children and their carers. As Martha Minow argues, "I find something terribly lacking in rights for children that speak only of autonomy rather than need, especially the central need for relationships with adults who are themselves enabled to create settings where 79  children can thrive."  This is not to suggest that children do not also require a degree of  autonomy. It is important that in acknowledging relationships between carers and children we do not silence children in the process. However, protecting children's autonomy must not be at the expense of protecting their relationships. 2.3.3  The Problem of Speaking for Children: Appropriating Children's Rights  My final concern with adopting a rights framework for children is that the rights granted to children will often be exercised by adults on their behalf, and are thus open to being appropriated or interpreted in a way that serves particular ideological purposes. The language of children's rights can also be easily appropriated by lobby groups who seek to speak on behalf of children or attempt to tie children's needs to a particular social agenda, but have their own aims and goals. As Smart, Neale and Wade explain: 73  The more the needs of children become harnessed by specific campaigns, such as the desire to preserve marriage, or the goal of moving women out of the labour market, or the rights of fathers,  ^ Martha Minow, "Interpreting Rights: An Essay for Robert Cover" (1987) 96 Yale L. J. 1860 at 1910. See, eg, the work of Kaye and Tolmie on fathers' rights groups in Australia and their use of children's rights rhetoric to further their own political agenda: Miranda Kaye & Julia Tolmie, "Discoursing Dads- The Rhetorical Devices of Fathers' Rights Groups" (1998) 22 Melbourne U.L. Rev. 162. Kaye and Tolmie also argue that fathers' rights groups have also appropriated the equality language offirstwave feminism to further their arguments: ibid, at 169.  38  the less possible it is to have a debate that starts with the standpoint of children. Adult agendas take over and children become symbols rather than real persons. 74  Under a children's rights model, children are still rarely permitted to speak for themselves, so there is little opportunity for them to reinterpret their rights from their own perspective, or to challenge the definitions imposed by adults. This is particularly pertinent in family law where the language of children's rights is common but the voices of children are largely absent, and where most of the "rights of the child" are necessarily exercised by adults. In fact, in some instances the rights of children in family law seem to act as a smokescreen for an alternative agenda. For example, in the case of a child's right to contact with a non-custodial parent, it appears that the right of the child to exercise contact is dependent on the child exercising it in a manner in which the court approves. As Smart and Neale explain:  A guiding principle which states that contact is the right of the child but which then imposes a contact order on an unwilling child in the long run, seems to want to have its cake and eat it. If contact is the right of the child, so is no contact. If the child chooses to exercise his/her rights, it is an abuse of the court's power to insist that they can only be exercised in one direction because the court actually knows what is best already. Treated this way, the notion that contact is the right of the child does not empower the child but only the court in the pursuit of an ideal about the benefits of contact. 75  Furthermore, while the right to contact is the right of the child, the right itself is granted to the adult, and it is the adult who is entitled to seek redress if contact does not occur. In contrast, if the adult fails to make him or herself available for contact, the child has no recourse. This analysis exposes the tenuous nature of children's "rights" in family law, and the ease with which they can be appropriated and abused by the adults who are given the responsibility of carrying them out.  The problems articulated above are not necessarily reason enough to abandon children's rights. It is possible that a child's right to contact could be reinterpreted in a way that allows it to be exercised in both directions. However, the problem remains that conceptualizing children as rights-bearers requires the court to "work to an abstract  Smart, Neale & Wade, supra note 11 at 22. Carol Smart & Bren Neale, Family Fragments? (Cambridge: Polity Press, 1999) at 189-90.  39  principle, rather than working from the complexities of real family relationships."  76  Abstract principles such as rights are vulnerable to being appropriated or "filled" with ideological assumptions, particularly in the case of children, given that children rarely speak for themselves.  Despite the skepticism about rights, few feminists believe they should be abandoned altogether. In fact, some feminists believe that rights can be revisioned in a relational context, and that children's rights may play a fundamental role in this process. For example, Martha Minow argues that the development of children's rights could lead to a 77  •  productive re-conceptualization of the whole notion of rights.  Her analysis is informed,  "by three feminist concerns: appreciation of relationships, a commitment to a vision of the self forged in connection with - not just through separation from - others, and a preference for glimpses of complexity, contextual detail, and continuing conversation."  78  As stated above, the dominant conception of rights presupposes an autonomous individual who has a direct relationship with the State. This conception is problematic with respect to children, who are not autonomous but (interdependent (both in terms of their lived lives, as well as a result of laws that deny them independence), and whose relationship to the State is generally not direct but mediated by their parents. However, 79  the liberal conception of the autonomous individual is also problematic with respect to adults, for many of the same reasons. Adults are also (inter)dependent, enmeshed in relationships of care, and value connection. Thus Minow finds in children's rights possibilities for expanding and enriching rights for adults (as well as children). She argues that rights can be re-conceptualized so that they are as focused on protecting human relationships or connection, as they are on personal autonomy. The goal of autonomy need not be abandoned, but it must be joined with the goal of affiliation.  76  Ibid, at 190.  Martha Minow, "Rights for the Next Generation: A Feminist Approach to Children's Rights" (1986) 9 Harv. Women's L. J. 1. Ibid, at 15. Ibid, at 18. 7 7  78  79  40  2.4  Conclusion  It is clear from the discussion above that both the protectionist model and the children's rights model are flawed models with which to conceptualize the child. Protectionism is paternalistic, de-contextualizes the child by presuming he or she has an inherent "nature", and denies the child a voice. Equally problematic, the children's rights model presumes the social desirability of the liberal individual, emphasizes rights and rules over relationships and responsibilities, and universal principles over concrete situations, and is vulnerable to appropriation by interest groups who claim to act on children's behalf. While Minow's work raises the possibility that a rights framework could be revisioned in such a way that it no longer ignores the connections between people, there are other problems associated with a rights approach that would not necessarily be addressed by such changes. It is also difficult to know whether rights can ever be extracted from the liberal presumptions from which they have emerged. Given the flaws associated with the models available I propose an alternative way in which to conceptualize the child: a conceptualization based on the "ethic of care". In the next chapter I will explain what is meant by the phrase "ethic of care", and consider how such an ethic might conceptualize the child both in general and in the context of custody and access law.  41  Chapter III  3.0  Conceptualizing the Child Through an Ethic of Care  3.1  Introduction  As discussed in Chapter 2, neither the protectionist nor the children's rights model of conceptualizing the child adequately reflects the complexities of children's relational lives. The protectionist model is paternalistic, ignores the child's voice in decisionmaking, and has a tendency to understand children as a 'problem population' in need of discipline and control, while the children's rights model ties children to the abstraction of the rational, autonomous, liberal individual, and thus robs them of their context and devalues the relationships and care that surround them. In this chapter I will propose a third way in which to envision the child that derives from the "ethic of care". Conceptualizing the child through an ethic of care involves focusing on relationships rather than rights, understanding the child in relation to the concrete circumstances of his or her life, and emphasizing the importance of the activity of care.  In this chapter I will outline the framework for an alternative theory of understanding children based on an ethic of care, drawing in particular on the work of Carol Gilligan and Joan Tronto. I will begin by defining what is meant by the term "ethic of care" and how it has developed within feminist literature. I will then contrast it to the "ethic of justice" that currently dominates western legal systems. Finally, I will consider how such an ethic, based originally on women's difference, might conceptualize the child, focusing in particular on how the care principle has developed in the context of child custody law.  3.2  Carol Gilligan, Feminism, and the "Ethic of Care"  As the discussion of rights in Chapter 2 suggests, in the past two decades an increasing number of feminists have questioned the notion of the autonomous, rights-bearing liberal individual, and have sought to supplement or supplant it with a theory of human  42  interaction grounded in relationships. Theories about the relevance of relationships to women's lives emerged in the early 1980s, inspired in large part by Carol Gilligan's book In a Different Voice. In her book, Gilligan described a distinctive moral voice, the "ethic of care" or of relationships, which she claimed was employed more frequently by women than men, and which she argued was as coherent and mature as the theoretically dominant "ethic of justice".  1  Before considering what the ethic of care might say about children, I want to outline Gilligan's work and the work of those "ethic of care" feminists who built on her initial theory. When Gilligan began her research she sought to address what she saw as problems with Lawrence Kohlberg's psychology of "moral development". At the time, 2  Kohlberg's theory was universally accepted in psychology circles and formed the framework for the majority of psychological research. Basing his work on the study of 84 boys whom he followed for over twenty years, Kohlberg identified six stages of moral development. The final two stages of development entail the individual embracing a principled concept of human rights, where he or she "identifies morality with justice (fairness, rights...), with recognition of the rights of others as these are defined naturally or intrinsically." When measured by Kohlberg's scale women tend to be deficient in 4  moral development. Women rarely move beyond Kohlberg's third stage where morality is conceived in interpersonal terms and goodness is equated with helping and pleasing others. Kohlberg argues that, to the extent that women's lives take place in the home, this stage of development is functional for women. But if and when women enter the public sphere they will recognize the inadequacy of this perspective, and progress like men  Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (Cambridge: Harvard University Press, 1982). Lawrence Kohlberg, The Psychology ofMoral Development: The Nature and Validity ofMoral Stages (San Francisco: Harper and Row, 1984) 212-319. Lawrence Kohlberg, "The Development of Modes of Thinking and Choices in Years 10 to 16", Ph.D. Dissertation, University of Chicago, 1958; ibid. Lawrence Kohlberg, "Continuities and Discontinuities in Childhood and Adult Moral Development Revisited" in Collected Papers on Moral Development and Moral Education (Moral Education Research Foundation, Harvard University, 1973) at 29-30. 1  2  3  4  43  toward higher stages where relationships are subordinated to rules (stage four), and rules to universal principles (stages five and six).  5  Concerned that Kohlberg's research was based solely on boys, Gilligan was interested in whether his theory of moral development was truly universal. In conducting her own research, Gilligan began to hear two distinct moral voices, rather than the universal voice of morality upon which Kohlberg's theory was based. Interestingly, she observed this second or "different" voice while interviewing women for a study of the relation between judgment and action in a situation of moral conflict and choice. Gilligan found that the women in her study had a distinct way of speaking about moral problems and describing the relationship between the other and the self. She also found that the voice that emanated from this group of women was different from the psychological descriptions of identity and moral development that dominated psychological literature. Gilligan began to connect the absence of this "different" voice from psychology to the absence of women in psychological research.  In her research Gilligan also found that the voice of care was more often articulated by girls than boys. In her interviews with two eleven year olds, Amy and Jake, she found that when confronted with a dilemma devised by Kohlberg to measure moral development in adolescents, Amy's judgments contained the insights central to an ethic of care, while Jake's judgments reflected the logic of the justice approach. Amy saw the 6  various people involved in the dilemma "not as opponents in a contest of rights but as members of a network of relationships on whose continuation they all depend", while Jake saw a conflict between "life and property" that could be resolved through logical deduction. It would be easy to conclude from these findings that the ethic of care is a gendered phenomenon, but Gilligan refused to do so. Instead, she pointed to the problem of presuming that there is only one path to moral development - the ethic of justice - and  Lawrence Kohlberg & R. Kramer, "Continuities and Discontinuities in Child and Adult Moral Development" (1969) 12 Human Development 93. Gilligan, supra note 1 at 24-39. Ibid, at 30. * Ibid, at 31. 6 1  44  that the ethic of care is inferior. By prioritizing the ethic of justice, as Kohlberg's theory of moral development does, we fail to hear Amy's voice.  Interestingly, in their recent study of children of divorce Smart and her colleagues found that children of both sexes spoke the language of care. The children they interviewed 9  uniformly described their families in terms of relationships, love, care and mutual respect, rather than biological relatedness or the "nuclear" norm. They seemed to 10  prioritize relationships and care over concrete rules about what makes up a "family". In constructing their families in such a way the children seemed to reject the "justice" ethic by refusing to presume that those who are defined as "family" under the rules of biology or family norms automatically have certain rights. The children also attached a great deal of importance to the quality of the relationships they experienced within their families. The children with divorced parents in the study felt that parents had to show evidence of wanting to see them and actually caring for them before they could be considered part of the family. Smart and her colleagues concluded that "children conceptualize family 11  very much in terms of relationships rather than structures, and that relations of care and respect assume rather more significance for them than the particular shape and size of their family." It is not easy to reconcile the findings of Smart and her colleagues with 12  those of Gilligan, where the gender divide between the children interviewed seemed extreme. However, the work of Smart and her colleagues suggests that many children speak with the language of care, at least in the context of their own families.  Following on from her early interviews, Gilligan continued to find, in general, that men and women follow different paths to moral development.  Women tend to speak in a  Carol Smart, Bren Neale & Amanda Wade, The Changing Experience of Childhood: Families and Divorce (Cambridge: Polity Press, 2001). Ibid, at 56-57. Ibid, at 57. Ibid, at 65. It should be noted that Gilligan's methodology can be criticized for its failure to include a diverse sample. While Gilligan was obviously attentive to issues of gender, the interviewees she used for her "ethic of care" studies remained largely white and middle class. It is interesting to note that other researchers have found that the ethic of care might also be articulated by other disadvantaged groups, such as racial minorities and working class people, and thus might not be as gendered as Gilligan might have suggested. This research will be discussed on pp. 48-49, below. 9  10  u  12  13  45  morally "different voice" from the one identified by Kohlberg as the definitive voice of mature moral judgment. Gilligan called this "different voice" the "ethic of care" and compared it with the "ethic of justice" that Kohlberg had identified as the highest stage of moral reasoning. While Gilligan associated the ethic of care with women and traced its development primarily through women's voices, she made it clear that the different voice she describes was, "characterized not by gender but theme", and that its association with women was simply "an empirical observation."  14  Gilligan explained the "ethic of care" as follows:  In this conception, the moral problem arises from conflicting responsibilities rather than from competing rights and requires for its resolution a mode of thinking that is contextual and narrative rather than formal and abstract. This conception of morality as concerned with the activity of care centers moral development around the understanding of responsibility and relationships, just as the conception of morality as fairness ties moral development to the understanding of rights and rules. 15  In this passage Gilligan identifies three elements of an ethic of care that distinguish it from the ethic of justice. First, an ethic of care arises out of responsibilities and relationships rather than rights and rules. Second, it is contextual. It is tied to concrete situations, rather than being formal and abstract. Third, an ethic of care is expressed as moral activity or the "activity of care". Thus the ethic of care "is not grounded in universal abstract principles but in the daily experiences and moral problems of real people in their everyday lives." In contrast, the ethic of justice that characterized 16  Kohlberg's theory of moral development is concerned with the application of abstract rules from an impartial stance, giving primacy to issues of equality and rights. While there is obviously nothing inherently wrong with either equality or rights, by giving them primacy Kohlberg prioritizes separation at the expense of connection. Such an approach seems to conflict with the views of the children in the Smart, Neale and Wade study who emphasized social context, the activity of care, and the relationships of those involved,  Gilligan, supra note 1 at 2. /Wrf.atl9. Joan Tronto, "Beyond Gender Difference to a Theory of Care" (1987) 12 Signs: Journal of Women in Culture and Society 644 at 648. 14  Is  16  46  and rejected a rights/justice framework based on biology or normative values about what constitutes a family.  Gilligan's work on the ethic of care triggered considerable debate within feminism. Some feminists welcomed the idea that women might speak in a "different voice" to men. They embraced the "ethic of care" as the voice of women, and valorized caregiving and the "connection thesis". Others were concerned that a theory that focused on relationships 17  and equated "care" with "women" had the potential to reinforce stereotypes of women as caregivers and homemakers.  Others were wary that the focus on relationships might  hide the fact that serious harms are sometimes inflicted within familial and intimate relationships. They argued that while some connections are life-affirming, others can be 19  invasive and abusive, and may diminish rather than enlarge the individuals that participate in them. Radical feminists such as Catharine MacKinnon, challenged the authenticity of Gilligan's "different voice", arguing that it was merely the voice of subordination, produced by the male foot on women's throats. Until men released their 20  feet from the throats of women there was no way of knowing what "women's voice" sounded like.  In defense of Gilligan, many of the initial responses to her work appear to have misinterpreted her argument. Gilligan's findings were widely cited as proof that women differ from men and, in particular, that they possess an inherently different voice to men based on the ethic of care. While Gilligan did state that "the focus on care.. .is characteristically a female phenomenon in the advantaged populations that have been  See, eg, Robin West, "Jurisprudence and Gender [1988]" in Katherine Bartlett & Rosanne Kennedy, eds. Feminist Legal Theory Readings in Law and Gender (Boulder: Westview Press, 1991) 201-34. See "On In a Different Voice: An Interdisciplinary Forum" (1986) 2 Signs: Journal of Women in Culture and Society 324: Linda Kerber, "Some Cautionary Words for Historians" (1986) 2 Signs: Journal of Women in Culture and Society 309; Catherine Green & Eleanor Maccoby, "How Different is the 'Different Voice?'" (1986) 2 Signs: Journal of Women in Culture and Society 315; Carol Stack, "The Culture of Gender: Women and Men of Color" (1986) 2 Signs: Journal of Women in Culture and Society 324. Robin West, Caring For Justice (New York: New York University Press, 1997) at 2. Ellen DuBois, Mary Dunlap, Carol Gilligan, Catharine MacKinnon, Carrie Menkel-Meadows, "Feminist Discourse, Moral Values, and the Law - A Conversation" (1985) 34 Buff. L. Rev. 11. 18  19  2 0  47  21  studied",  she indicated that the equation of an ethic of care with women is a cultural  phenomenom, and not an indication of something inherently female. Gilligan's point is a subtle one. While she does state that the ethic of care is disproportionately the ethic of women, she does not argue that an ethic of care is inherently female. Her aim is to expand the moral domain to include both justice and care. Wary of the possible implications of equating women and care, feminists and moral theorists who built on Gilligan's theory generally sought to extricate it from its gendered context.  Writing several years after Gilligan, Joan Tronto recognized the fundamental value of the ethic of care for feminist theory, but sought to remove Gilligan's "different voice" from the gendered context in which it had developed. Tronto argued that an ethic of care could be an important intellectual concern for feminists, but that the debate "should not be centered in a discussion of gender difference but in discourses about the ethic's adequacy 99  as moral theory."  Tronto rejected the gendered element of an ethic of care for three  reasons. First, she argued that the evidence linking gender difference to a different moral perspective or "voice" was inadequate. Thus the equation of "care" with "women" was questionable. Second, she argued that it was strategically dangerous for feminists to make a connection between gender and moral reasoning because the assertion of gender difference in a social context that identifies the male as the norm implies the inferiority of the female. Finally, she argued that equating gender with care was "philosophically stultifying" because if care is inherently tied to gender difference, feminists will become trapped trying to defend women's different morality, rather than looking critically at the philosophical promise (or problems) of an ethic of care. In seeking to look beyond gender for an explanation of Gilligan's findings, Tronto argued that Gilligan's "different voice" may be the product of social position. In Tronto's words, "women's different moral expression might be a function of their subordinate or tentative  Carol Gilligan, "'Reply' in 'On In a Different Voice: An Interdisciplinary Forum" (1986) 2 Signs: Journal of Women in Culture and Society 324 at 330. Tronto, supra note 16 at 646.  2 2  48  social position." In reaching this conclusion, Tronto considered research that measured 23  moral cognitive development amongst communities other than white, middle class, males, and found that the ethic of care is not necessarily just the voice of women. In fact, the different voice that Gilligan tentatively attributes to women is consistently articulated by the poor and ethnic minorities. For example, research conducted in the United States 24  strongly suggests that the moral conceptions of minority groups, such as AfricanAmericans, Latinos and Indigenous Americans, are more likely to be characterized by an ethic of care than an ethic of justice. What this research suggested is that the voice of 25  care may be a social phenomenon. For Tronto, the possibility that there may be a social cause for the different voice that Gilligan heard "[broadened] the implications of and Oft  possible interpretations of research on an ethic of care." Tronto concluded, as Gilligan had in relation to women, that the moral views of these minority groups were not underdeveloped, but "simply not captured" by Kohlberg's categories.  In reaching this  conclusion she rejected the possibility that the "different voice" articulated by many women was the product of moral inferiority, or an example of women and minorities 9R  "proudly clinging" to their moral views even though society deemed them inferior. Rather, Tronto argued that the ethic of care is most often spoken by women and minorities because their position as carers in society provides them with an opportunity to develop this particular moral sense. Based on this, Kohlberg's assumption that justice 9Q  reasoning is somehow superior to an ethic of care can be rejected:  By stressing the positive qualities of an ethic of care, this approach would turn Kohlberg's "naturalistic" moral psychology on its head. While white women and minority men and women occupy vastly different positions in the social order, they disproportionately occupy the caretaking  Ibid, at 649. Tronto's argument is somewhat similar to McKinnon's point that the subordination of women means that we do not know what "women's voice" sounds like, and therefore should not jump to the conclusion that the "ethic of care" is the voice of women, rather than the voice of subordination. Ibid, at 649-51. Robert Coles, Eskimos, Chicanos and Indians (Boston: Little, Brown & Co, 1977); John Langston Gwaltney, Drylongso: A Self-Portrait ofBlack America (New York: Random House, 1980); Wade Nobles "Extended Self: Rethinking the So-called Negro Self-Concept" (1976) 2 Journal of Black Psychology 1524. Tronto, supra note 16 at 651. Gilligan also considered the social origins of the different voice, but Tronto sought to explore this possibility further. Ibid, at 650. Ibid, at 652. Gilligan also rejected the notion that the ethic of justice was superior. Her argument was that both the ethic of care and ethic of justice are important. l i  24  2 5  2 6  27  28  2 9  49  roles in our society. Thus, these groups, in terms of having an ethic of care, are advantaged by their social roles. It may be that, in order for an ethic of care to develop, individuals need to experience caring for others and being cared for by others. From this perspective, the daily experience of caring provides these groups with the opportunity to develop this moral sense. The dearth of caretaking experiences makes privileged males morally deprived. Their experiences mislead them to think that moral beliefs can be expressed in abstract, universalistic terms as if they were purely cognitive questions, like mathematical formulae. [footnotes omitted] 30  Tronto's interpretation of the voice of care opened the door for a discussion about the value of the ethic of care for everyone. She did not suggest that everyone should be expected to embrace the ethic of care, but that it should be regarded as a valuable moral position, equal to an ethic of justice.  Drawing on the work of both Gilligan and Tronto, feminists continue to use the notion of an ethic of care to conceptualize the human condition in a way that challenges dominant understandings of justice and rights. Many feminists who embrace an ethic of care have followed Tronto's lead and do not presuppose that an ethic of care is the "different voice" of women. Instead they employ the ethic of care as an alternative way of seeing things, a perspective that acknowledges the relational dimensions of human life. Somewhat surprisingly, given the focus on caregiving and relationships within the ethic of care, it has only found its way into debates about children in the last ten years. In recent years however, some groundbreaking work has been done on the ethic of care and children in **  family law, most particularly by Selma Sevenhuijsen  31  and also Carol Smart, Bren Neale  and Amanda Wade. In her work on the public debates about child custody in the Netherlands, Sevenhuijsen suggests that the ethic of care might be able to provide new perspectives on the politics of custody law, particularly if it is avoids becoming entangled in the controversies surrounding sexual difference in moral reasoning. Sevenhuijsen argues that:  The ethics of care... is a specific form of ethics which can also imply new types of normativity. This interpretation offers a better approach for mobilizing various ideas from the care ethics  Tronto, supra note 16 at 652. Selma Sevenhuijsen, Citizenship and the Ethics of Care: Feminist Considerations on Justice, Morality and Politics (London: Routledge, 1998) at ch. 4. Smart, Neale & Wade, supra note 9.  3 1  3 2  50  debate in public deliberations about child care and custody than thinking in terms of female or male forms of morality, or maintaining that women are better at caring than men. 33  Adopting Gilligan's three criteria of an ethic of care - relationships, the principle of actuality, and the activity of care - Sevenhuijsen suggests that approaching family law through an ethic of care would radically change how we view both care and men's and women's relationship to it: In a care ethics perspective, instead of guaranteeing men authority rights to protect them from a (potential) dependency on women, the government should see its primary task as enabling men to build intimate and caring relationships with women and children, by making this possible in terms of time, space and material resources. This would imply that a more satisfactory distribution of labour and care between men and would be a political priority. When care is re-evaluated and freed from its gender-load and its associations with sexual difference, it also becomes a less daunting and more attractive proposition for men to identify with care and to adopt a caring identity. 34  Smart and her colleagues have also attempted to incorporate the ethic of care into family law decision-making. They argue that an ethic of care offers a more appropriate way in which to conceptualize the child than the models that have preceded it. They argue that children need to be understood as "social" beings, rather than atomistic individuals or dependents in need of protection, and that incorporating an ethic of care into family law decision-making may be the best way in which to acknowledge the relational lives of children in the decision-making process. Drawing on the analysis of Smart and her 35  colleagues, I will now consider how the child might be conceptualized through an ethic of care.  3.3  Applying the Ethic of Care to Children  In this section I will consider how the child might be conceptualized through an ethic of care, basing my analysis on the three points of difference Gilligan identified between an ethic of care and an ethic of justice. As the discussion above suggests, an ethic of care would conceptualize the child in starkly different terms than either the protectionist or children's rights models, and would avoid many of the problems associated with these * Ibid, at 107. Ibid. at 111. u  51  models. First, an ethic of care understands children in much the same way as it understands adults; as connected, social beings, enmeshed in a complex web of relationships. Second, conceptualizing the child through an ethic of care would involve rejecting universal and abstract principles about children's "nature" and would instead take a contextual approach to childhood, grounding it in the concrete circumstances of each child's life. Finally, an ethic of care would recognize the importance of care and caregiving in children's lives, and would be particularly attentive to the actual "activity of care".  3.3.1  The Relational Child  As Robin West explains, an ethic of care "has as its core a central mandate to care for the 1ft  relationships that sustain life".  Thus conceptualizing the child through an ethic of care  requires a recognition of the relational nature of children's lives, and a commitment to protecting the relationships of care that sustain them. While protectionism and children's rights go some way towards understanding children as relational beings, both are fundamentally incompatible with an ethic of care. The protectionist model does acknowledge the parent/child relationship, but the relationship it protects is inherently unequal. It is premised on children's incapacity and the right of adults to speak on behalf of children. Similarly, while there is some acknowledgment under the children's rights model of the importance of connection in children's lives - for example, the Convention on the Rights of the Child gives the child a right to maintain relationships with caregivers if it is in the child's best interests - because the rights model is focused on producing a rational and autonomous adult, connection is treated as a stage in the maturity process which will ultimately be supplanted by detached individualism. In addition, the relationships a children's rights model envisages protecting arise out of the enforcement of rights, rather than the acknowledgement or valorization of connection; caregiver relationships are protected because the child has a "right" to maintain them.  West, supra note 19 at 8.  52  In contrast to both the children's rights and protectionist models, an ethic of care would acknowledge and protect relationships not because of children's incapacity, or in order to protect some amorphous "right", but because of the inherent interdependence of human existence. This ethos would inform everything that has to do with children, including family law. It would be fundamental to any decision-making about children's lives - it would affect how the law is drafted, how it approaches disputes affecting or involving children, and who is consulted throughout the process. A n ethic of care would also not impose any particular relationship model on children. For example, it would not presume that biological relationships are necessarily any stronger than social or psychological ones. Instead, it would focus on and protect the relationships that do exist, independent of whether they satisfy a particular model of "family". Such an approach would necessarily be more inclusive of alternative families, such as same-sex families or families that rely on kinship networks for raising children.  Understanding the child in a relational context does not mean that all relationships are presumed to be positive. As Robin West explains, "[o]bviously while some "connections" that tie us to others are life-affirming, others are invasive and overpowering. They diminish rather than enlarge the individuals who participate in ^7  them."  In particular, the connections that characterize intimate and family life carry  tremendous potential for harm. A n abusive parent/child or parent/parent relationship, or the maintenance of a parent/child or parent/parent relationship that damages the child's relationships with others, particularly his or her primary caregiver, is unlikely to be supported by a theory based on care. A n ethic of care avoids making assumptions about what relationships work and which ones should be preserved. It supports the evaluation 38  of each relationship, and protects only those that are positive for the child. This is done not because children are vulnerable and in need of protection, or because they have rights that entitle them to be protected from abuse, but because conceptualizing the child in a Ibid, at 2. While an entirely discretionary system can be problematic for the law, I would suggest that the principle of actuality can only be adhered to if there is a reasonable degree of discretion in the process. Because of the problems associated with discretion, in Chapter 5 I will discuss in more detail whether the ethic of care might need to introduced into family law through a combination of principles and presumptions: see Ch. 5, pp. 122-24, above. 37  3 8  53  relational context involves an acknowledgement that relationships can both "diminish and enlarge" the children who participate in them.  At the same time that an ethic of care advocates the termination of unhealthy relationships, it also promotes the preservation and protection of those relationships that are life-affirming. In order for this to occur, the physical, legal, social, and economic conditions, both for the child and his or her carer/s, that make the preservation of healthy relationships possible must be in place. As West argues, [I]f.. .the act of caring for others to whom we are connected in some way is central to our moral lives, then our capacity for care should be at the center of our understanding of our public and legal, as well as private and personal, virtues, and specifically that it should be central to the meaning of legal justice. 39  Thus conceptualizing the child through an ethic of care would involve a community-wide acknowledgement of the importance of preserving relationships of care, and a commitment to ensuring that the various conditions necessary for preservation are in place. The legal system might be involved in this process by creating protocols between the courts and various social service agencies that work with families on a more day-today basis.  3.3.2  T h e "Principle of Actuality"  While protectionism and children's rights are based on universal and abstract notions of the child's (and the individual's) inherent "nature", an ethic of care takes a contextual approach to childhood, grounded in the concrete circumstances of each child's life. Smart and Neale have labelled this element of the ethic of care the "principle of actuality".  40  Under the protectionist model, children are presumed to have a particular nature that precludes the need for any investigation of the practical realities of their lives. They are vulnerable and in need of care, and the people best able to provide that care and make  West, supra note 19 at 9. Carol Smart & Bren Neale, Family Fragments? (Cambridge: Polity Press, 1999) at 192.  54  decisions on their behalf are their parents. Under the children's rights model some attention is paid to the actual circumstances of children's lives, but it is done through a principle - the "best interests of the child" - that is open to varying interpretations and, in some cases, abuse. In contrast, incorporating the principle of actuality into our 41  conceptualization of the child will ensure the recognition of the unique nature of each familial situation, will prevent the emergence of universal assumptions about what is in children's best interests, and will allow for an analysis of the quality of each parental relationship.  42  In their recent empirical study of parents who had experienced a custody or access dispute, Smart and Neale found that one of the greatest concerns of the parents interviewed was the way in which decision-making with regards to their children seemed to be based on what was "best for children in general", which they felt to be "inappropriate or insensitive" in the context of their actual circumstances. Reflecting 43  the concerns of an ethic of care, many of the mothers and some of the fathers felt that decisions should be based on the practical realities of their children's lives, such as who the primary caregiver has been, whether both parents actually have a relationship with the child, and whether there is a history of abuse or ongoing cause for fear. As mentioned above, drawing on the work of Gilligan and Sevenhuijsen, Smart and Neale referred to this element of the ethic of care as the "principle of actuality", which they described as "almost an anti-principle" in that it argues that decisions or outcomes in cases concerning parents and children "should be derived from the reality of the lives of the people involved." Thus "decisions would not be made on the basis of abstract notions of child 44  welfare, but in relation to the needs and wishes of actual children."  45  The principle of actuality necessarily provides that children have a voice in decisionmaking about their lives. If our conceptualization of the child is grounded in the practical The vulnerability to political co-opting and the indeterminacy of the best interests principle will be discussed in greater detail in Chapter 5. The issue of whether the "principle of actuality" could be read into the "best interests" test, or whether it is necessary to abolish the best interests test will be discussed in Chapter 5: Ch. 5 at pp. 104-112, below. Smart & Neale, supra note 40 at 193. Ibid, at 192. Ibid, at 193. 4 1  4 2  4 3 44  45  55  realities of a child's life then we must talk and listen to children. This does not mean that the perspectives of adults are irrelevant; they are just no longer the exclusive source of information about the children in their care. This de-centering of adults in an ethic of care's conceptualization of the child also makes it more difficult for adults to appropriate the rhetoric surrounding children's rights and children's vulnerability for their own political goals.  3.3.3 The Importance of Care: the "Activity of Care"  Finally, an ethic of care would put care at the centre of any conceptualization of the child. It would acknowledge the fundamental role that caregiving plays in children's lives and would give appropriate recognition to it and to those who provide it. In particular, it would give due recognition to the actual activity of care, and would support and protect those engaged in that work.  Both the protectionist and the children's rights models give insufficient recognition to the importance of care and caregiving. The protectionist model treats caregiving as a function of children's dependency and incapacity. The caregiving relationships it envisages are thus hierarchical, unequal, and premised on adults speaking for children. Treating caregiving as a right - a "right to be cared for" - is equally problematic. It separates the individuals involved, creating a line of demarcation between the "caregiver" and the child with the "right" to care. In contrast to the protectionist and children's rights models, an ethic of care places recognizes the importance of care in children's lives, the interdependency of the relationships that stem from it and give rise to it, and the inextricable link between the well-being of caregivers and the well-being of the children in their care.  In discussing the importance of caregiving to Gilligan's ethic of care, Tronto and Smart drew a distinction between two modes of caring: "caring for" and "caring about".  46  Joan Tronto, "Women and Caring: What can Feminists Learn about Morality from Caring?" in Alison Jaggar and Susan Bordo, eds., Gender/Body/Knowledge (New Brunswick: Rutgers University Press, 1989); Carol Smart, "Losing the Struggle for Another Voice: The Case of Family Law" (1995) 18 Dalhousie Law' Journal 173.  56  "Caring about" is traditionally seen as an ethical stance and involves caring about such things as AIDS in Africa, war in the Middle East, or poverty in America. In contrast, "caring for", often referred to as the "activity of care", is the actual act of caring, which might involve nursing sick people, feeding the poor, or looking after children. Smart argues that "in orthodox moral theory caring for is not seen as a moral activity, whilst caring about - which may not entail action - is." In Smart's view, "caring for" is almost 47  entirely excluded from recognition as moral activity because it is perceived as "natural" or "instinctive", and not as a "reflexive, conscious form of choice and/or action."  48  Applying her arguments to the family law context, Smart found that "caring for" is marginalized in family law, while "caring about" is valorized and perceived as an "ethical stance", though she suggests that the gender of the parent who is speaking may alter the way in which the caring is understood.  49  Based on her conversations with mothers and fathers who had gone through separation and/or divorce, Smart found that the vast majority of fathers talked about "caring about" their children, while the majority of mothers talked about "caring for". When caring was articulated in these terms in court, it appeared that family law (at least in Britain) was more impressed by statements on "caring about" (when described by fathers), than the activities of "caring for" (when described by mothers): Thus mothers, when they spoke about the work they did in caring for their children and the sacrifices they made, were hardly acknowledged. These actions were seen as being normal as breathing and thus as worthy of as much acknowledgement as such taken for granted activities usually generate. But when fathers articulated their care about their children, even if they had never really caredfor them, their utterances seemed to reverberate around the courts with a deafening significance. [emphasis added] 50  Smart's findings suggest that talk of "care" is not entirely absent from family law. However, it appears that the ethic of care that is operating is a differentiated ethic that recognizes only one type of care, namely "caring about", which is more often articulated by fathers than mothers. Alternatively, it could be argued that the family law system  Smart, ibid, at 177. "ibid. Ibid, at 177'-78. Ibid, at 177. 4 7  49  50  57  responds to statements about care according to the gender of the speaker. As Smart argues, "when fathers speak of care, whether it is caring about or caring for, they are listened to, but when mothers speak of care (of either sort) it is simply treated as unremarkable." Either interpretation highlights the fact that an ethic of care is already in 51  operation in family law, but that in its current form, it tends to marginalize the actual activity of care, particularly when performed by women.  I suggest that conceptualizing the child through an ethic of care as described by Gilligan, Tronto and Smart, would change the way in which "caring for" and "caring about" are understood in family law. Conceptualizing the child through an ethic of care requires decision-making to be grounded in the actual circumstances of children's lives, and therefore demands recognition of the activity of care. The more abstract language of "caring about" would not be ignored, but it would no longer be presumed that those who "care about" have greater moral authority than those who "care for". Shifting Canadian family law in such a direction will be difficult, not least because "caring for" remains gendered female and is therefore devalued. However, in the next two chapters I will discuss in more detail how we might go about incorporating an ethic of care into Canadian law, focusing on several legislative models that have been proposed in the United States and Australia.  3.4  Conclusion  I have shown in this chapter that the ethic of care might offer an appropriate model through which to conceptualize the child. A n ethic of care understands children through their relationships, grounds decision-making in the actual circumstances of children's lives, and emphasizes the importance of the activity of care. To conceptualize the child through an ethic of care would obviously involve a considerable shift in the current legal and social framework, but it would overcome many of the problems associated with the protectionist and rights models. In the next chapter I will look more closely at how an ethic of care might actually be incorporated into Canadian family law decision-making,  51  Ibid, at 178.  58  focusing in particular on Bill C-22 which would amend the custody and access provisions in the federal Divorce Act.  B i l l C-22, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and to amend other Acts in consequence, 3 7  th  Pari., 2002.  59  Chapter IV  4.0  Bill C-22 and the Ethic of Care  4.1  Introduction  The previous chapter gave some indication of how the child might be conceptualized through an ethic of care. A n ethic of care understands children through their relationships, grounds decision-making in the actual circumstances of children's lives, and emphasizes the importance of the activity of care. In this chapter I will look more closely at how an ethic of care might be incorporated into family law decision-making about children, focusing in particular on Bill C-22, which would amend Canada's federal Divorce Act. Bill 1  C-22 marks the culmination of over a decade of debate in Canada about child support and custody and access, and therefore gives some indication of the way in which Canadian family law currently regards issues of care. In this chapter I will first outline the historical and ideological origins of Bill C-22.1 will then consider the extent to which the Bill incorporates an ethic of care in its provisions, and suggest how the Bill might be amended to better reflect the concerns of an ethic of care.  4.2  Bill C-22: the Historical and Ideological Origins  Before considering the degree to which Bill C-22 incorporates an ethic of care in its provisions, it is necessary to consider the historical and ideological context in which it emerged. I will argue that the discourses that have dominated the law reform debates, and continue to pervade family law today, are justice-based and have very little to do with care. These discourses have had a significant impact on the process of reform and, ultimately, on the drafting of Bill C-22.  Bill C-22, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and to amend other Acts in consequence, 37 Pari., 2002 ["Bill C-22"] 1  th  60  4.2.1  The History of Bill C-22  Bill C-22, which was introduced into Parliament in December 2002, was the product of over ten years of public debate, academic research and parliamentary committee hearings. The process began in the late 1980s when women's groups began to express concern about issues relating to child support. They argued that the support amounts were too low, that 2  judges were inconsistent in how they dealt with the issue, and that there were serious 3  problems with enforcement. Concerns were also expressed about the system governing the taxation of child support. It was argued that the tax treatment of child support penalized 4  women because the support was deductible for the payor and included in the income of the recipient. Since the vast majority of recipients were women, this suggested discrimination based on sex.  5  At the same time that women were voicing concerns about child support there was also growing political support for mothers and children who had been abandoned by "Dead-beat Dads". While some of this concern may have been genuinely directed towards the women 6  For a review of the literature documenting the child support problems experienced by custodial parents, including the inadequacy in levels of child support and difficulties in collecting from recalcitrant payors, see: Diane Pask, "The Effect on Maintenance of Custody Sharing" (1989) 3 C.J.W.L. 155. For a feminist critique of the problems surrounding child support enforcement see: National Association of Women and the Law, Enforcement ofSupport and Custody Orders (Ottawa: February 1991). For a discussion of judicial treatment of child support issues see: Carol Rogerson, "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act 1985 (Part I)" (1991) 7 C.F.L.Q. 155; Carol Rogerson, "Judicial Interpretation of the Spousal and Child Support Provisions of then Divorce Act 1985 (Part II)" (1991) 7 C.F.L.Q. 271. For an analysis of the tax treatment of child support see: Claire Young, "Public Taxes, Privatizing Effects, and Gender Inequality" in Susan Boyd, ed., Challenging the Public Private Divide: Feminism, Law and Social Policy (Toronto: University of Toronto Press, 1997) 307 at 312-19 ["Public Taxes"]; Claire Young, "It's All in the Family: Child Support, Tax, and Thibaudeau" (1995) 6 Const. Forum 107 at 10 ["Family]; Faye Woodman, "Tax Aspects of the Child Support Guidelines: One Year later" (1998) 15 Can. J. Fam. L. 220. 2  3  4  It is estimated that 98 per cent of those paying child support, and thereby entitled to the deduction, are men, and 98 per cent per cent of those receiving child support payments which they must include in their income are women: evidence of Nathalie Martel, a federal government economist, on cross examination in Thibaudeau (1994), D.L.R. (4 ) 261; [1994] 2 C.T.C. 4 (F.C.A.) Supplementary Case on Appeal, Volume 2 at 185, cited in Young, Family, supra note 4 at 107. 5  th  For example, in 1995 Ontario's Premier Harris responded to a proposed federal-provincial program designed to track debtors using the Income Tax Act by suggesting a need to target deadbeat dads as the highest priority. He stated to the media, "When you start using the Income Tax Act as an enforcement mechanism for repayments, the very top priority ought to be deadbeat parents that are not making their support payments right now to spouses and as you know in many cases that's deadbeat dads": W. Walker, "Hit Deadbeat Dads with Tax Harris Says", Toronto Star (15 August 1995) A8. See also, Nicholas Bala, "A Report of Canada's 6  61  and children who often found themselves living in poverty following family breakdown, politicians also realized that if child support payments were higher and consistent fewer women would need to turn to government welfare. As Mossman argues, ensuring that 7  child support was adequate and enforced ultimately meant that the costs of raising children could be privatized within the family realm. Furthermore, treating child poverty solely as a problem of "Dead-beat Dads" and non-payment of child support, rather than as part of a wider problem that might require government taking some responsibility for the economic well-being of Canadian children, meant that the government did not have to look beyond the private realm of the family for a solution. Arguably, however, government support for 9  greater enforcement of child support awards did give some recognition to the cost of caregiving for women, both financially and in terms of time.  Political support for reforming child support laws mounted in the late 1980's, and in 1990 a federal-provincial-territorial working group on the issue was established. The working group prepared two discussion papers on models for child support guidelines, releasing one in 1991, and the other in 1995. By 1995 a Charter 10  11  12  challenge to the tax laws,  Thibaudeau v. Minister for Revenue (1995), 12 R.F.L. (4 ) 1 (S.C.C.) ["Thibaudeau"], had th  reached the Supreme Court.  Suzanne Thibaudeau, a single custodial parent, argued that  the requirement that she include in her income child support payments received from her 'Gender War Zone': Reforming the Child-Related Provisions of the Divorce Act" (1999) 16 Can. J. Fam. L. 163 at 170; Mary Jane Mossman, "Child Support or Support for Children? Re-Thinking "Public" and "Private" in Family Law" (1997) 46 U.N.B.L.J. 63 at 65. Bala argues that because the primary burden for welfare support fell on provincial and territorial governments, they were interested in co-operating with the federal government to resolve the issue: Bala, ibid. at 170. Mossman, supra note 6. Similar arguments are made in: Brenda Cossman "Family Feuds: Neo-Liberal and Neo-Conservative Visions of the Reprivatization Project" in Brenda Cossman & Judy Fudge, eds., Privatization, Law and the Challenge to Feminism (Toronto: University of Toronto Press, 2002) 169 at 19094. In her analysis of Thibaudeau Claire Young argues that the majority of the Supreme Court in Thibaudeau also implicitly reinforced the concept of child support as a private matter: Young, Public Taxes, supra note 4 at 313. Mossman, supra note 6 at 75. Federal/Provincial/Territorial Family Law Committee, Child Support: Public Discussion Paper (Ottawa: 1991). Federal/Provincial/Territorial Family Law Committee, Report and Recommendations on Child Support (Ottawa: 1995). Canadian Charter ofRights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ["Charter"]. For a detailed analysis of the decision in Thibeaudeau see: Lisa Phillips, "Tax Law: Equality Rights: Thibaudeau v Canada" (1995) 74 Can. Bar Rev. 668 7  8  9  10  11  12  13  62  ex-spouse discriminated against her on the basis of her status as a single custodial parent in contravention of s.15 of the Charter. Several intervenors in the case also argued that the tax rules discriminated against custodial parents on the basis of sex. The majority of the Court rejected the challenge, holding that there was no burden imposed by the existing inclusiondeduction system on the group consisting of separated or divorced parents. Cory and 14  Iacobucci JJ. also found that if there was any disproportionate displacement of tax liability as between ex-spouses, that was a problem for family law, rather than tax law, to remedy. Young argues that the key to understanding the majority's decision in Thibaudeau is that the relevant group for the purposes of their Charter analysis is separated or divorced couples or, as Cory and Iacobucci JJ. put it, the "post-divorce family unit":  With this "unit" as the starting point for the section 15 analysis, it is easy for the majority to conclude that there is no discrimination because the inclusion/deduction system benefits the group of separated or divorced parents by generating "substantial savings". Overall the tax burden of the couple is reduced. 15  In contrast, the dissenting female members of the court did not view separated or divorced individuals as part of a couple of ex-spouses, and thus found it much easier to argue that the tax regime for child support unconstitutionally burdened non-custodial parents (and women).  While Thibaudeau was a win for the government, which strongly opposed constitutionallybased judicial revisions to tax law, it was determined that if the challenge had succeeded and the tax deductibility for child support had ended, the federal government would have increased its tax revenue by an estimated $400 million a year. Thus, after its constitutional 16  "victory" in Thibaudeau, the government was quite willing to "give in" to women's groups on the issue of tax treatment of child support, since it meant an increase in government revenue. The shift in tax treatment would also ensure the ongoing privatization of the 17  costs of child-rearing within the family.  Young, Public Taxes, supra note 4 at footnote 9. Young, Family, supra note 4 at 108. This figure comes from Justice Canada, The New Child Support Package (1996) ["The New Support Package"]. Bala, supra note 6 at 174. 15  16  17  63  In March of 1996 the federal Justice Minister announced that the government would introduce a package of child support reforms. These reforms included the Child Support 18  Guidelines under which the monthly amount of child support payable would, in most cases, be determined by reference to the payor's annual income. These Guidelines would be binding on the courts, though the parents themselves could agree to a different amount. The package also included measures to assist in the enforcement of child support. The final component of the package reformed the tax treatment of child support, specifically abolishing the inclusion/deduction scheme.  While women's groups were lobbying to make changes in the area of child support, in the mid- to late-1980's fathers' rights advocates had begun mobilizing to express concerns over the treatment of fathers by the family law system, particularly in the area of custody and access. For some years fathers had been citing statistics that showed that mothers received custody in the vast majority of cases, and that joint custody or sole custody to a father was rarely ordered. They attributed these statistics to judicial "bias against fathers". During 19  20  the legislative debates surrounding the new Divorce Act in the mid-1980's, fathers' rights groups successfully presented their claims of judicial bias to the House of Commons Standing Committee on Justice and Legal Affairs.  21  The New Support Package, supra note 16. In 1995 Statistics Canada found that mothers are awarded custody in 68 per cent of cases, fathers receive custody in 11 per cent of cases, while joint custody is ordered in 21 per cent of cases. These figures include cases resolved by settlement and litigation: Statistics Canada, Divorces 1995 (Ottawa: Statistics Canada, 1995) Table 8 at 20. As Boyd argues, while custody statistics do indicate that mothers are more successful than fathers in being awarded sole custody, "the numbers must be read against the backdrop of women's continuing disproportionate responsibility for children, and with an understanding that the vast majority of custody cases are decided outside the courtroom. With this context in mind, it becomes clear that the high number of awards reflects the division of labour that existed before the spousal relationship broke down, rather than maternal bias on the part of the judiciary": Susan Boyd, Child Custody, Law, and Women's Work (Don Mills, ON: Oxford University Press, 2003) at 103. In fact, fathers who actually petition for sole custody in court do quite well. A 1990 Department of Justice court file study found that fathers who petitioned for sole custody were successful in 43.5 per cent of cases, and were awarded joint custody in a further 8.7 per cent of cases: Department of Justice, Evaluation of the Divorce Act Phase II: Monitoring and Evaluation (Ottawa: Canadian Department of Justice Bureau of Review, 1990). The House of Commons Standing Committee on Justice and Legal Affairs was considering Bills C-46, C47 and C-48. For a discussion of these debates and the role of fathers' rights groups in them see: Susan Boyd & Claire Young, "Who Influences Family Law Reform? Discourses on Motherhood and Fatherhood in Legislative Reform Debates in Canada" (2002) 26 Studies in Law, Politics, and Society 43 at 55-63. 18  19  2 0  2 1  64  In the fall of 1996 the federal government proceeded with its plans for reforming the child support system. By this time, the lobbying of the fathers' rights groups had further intensified and was beginning to attract the attention of an increasing number of politicians and the media. After the House of Commons passed amendments to the Divorce Act that would allow for the adoption of the Guidelines, fathers' rights groups launched an intensive lobbying campaign directed at the Senate Social Affairs Committee. While some of the lobbying was focused on amending the proposed Guidelines, most of the complaints of the fathers' rights groups were directed towards the broader questions surrounding custody and access law. The rhetoric of the fathers' rights groups, couched largely in the justice-based language of equality and rights, began to attract the sympathies of some of the more conservative members of the Committee, as well as a Liberal member, Senator Anne Cools. In contrast, the arguments made by women's groups about the importance of caregiving in children's lives and the gendered division of caregiving labour within the family, received little attention. By late 1996 it became apparent that in order to secure the passage of the 99  «  Guidelines the government was going to have to act on custody and access issues.  It was  agreed that the Guidelines would be allowed to pass if the government convened a Special Joint Committee with representation from both the Senate and House of Commons, to study the Divorce Act, with a focus on child-related issues. In 1997 a Parliamentary Special Joint Committee on Child Custody and Access ("the Committee") was convened. The Committee's terms of reference instructed: That a Special Joint Committee of the Senate and the House of Commons be appointed to examine and analyze issues relating to custody and access arrangements after separation and divorce, and in particular, to assess the need for a more child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children's needs and best interests.  Public hearings began in December 1997 and evidence from over 500 witnesses was heard 93  during 39 public meetings.  The Committee traveled across Canada, hearing from  professionals, academics, government officials, representatives from various organizations, Bala, supra note 6 at 182. The Special Joint Committee on Child Custody and Access website includes the names and affiliations of the Committee members, information about the witnesses who appeared before the Committee, and transcripts of the proceedings: http://www.parl.gc.ca/InfoCom/ConmiitteeMam.asp?Language=E&CommitteeID=46&Jo. 2 2  2 3  65  and individuals with some experience of the family law system. The Committee also received hundreds of letters and submissions from individuals and organizations. There was a great deal of criticism of how the Committee hearings were conducted. While some 24  members appeared respectful of the concerns expressed by women, the hearings tended to be dominated by those who were sensitive to the concerns of fathers and often hostile to women and those who advocated for them. Roughly the same number of men and women 25  appeared before the Committee, but the stories told by men seemed to attract more attention from the Committee and dominated the media coverage. In addition, the anecdotal stories 26  told by fathers seemed to carry more weight with the Committee than research-based evidence presented by academics and women's groups. In particular, when women spoke 27  of the effects of domestic violence on women and children and its prevalence, they did not find a sympathetic audience.  Similarly, when women's groups gave evidence about the  importance of recognizing the activity of care in children's lives, it was largely disregarded by the Committee.  In 1998 the Committee produced a report, For the Sake of the Children ["the Report"].  29  The Report supported greater rights for non-custodial parents and specifically recommended the adoption of the concept of "shared parenting". It also tried to defray the "gender war" by ostensibly focusing on the interests of children. The Report was, however, widely criticized for being too pro-father, and for failing to give sufficient attention to the concerns of women and children who were victims of family violence. The brief section 30  Marie Laing, "For the Sake of the Children: Preventing Reckless New Laws" (1990) 16 Can. J. Fam. L. 229 at 238-41; Bala, supra note 6 at 185-88. Laing, ibid, at 239-40. For example, one presenter who was talking about gendered violence was admonished by Senator Anne Cools who suggested that perhaps the witnesses' testimony should be given under oath. 2 4  2 5  See, eg, "Women Making False Claims of Spousal Abuse M.P. Says", The Edmonton Journal, (12 October 1998) A3; Rachel Brighton, "Custody Not Awarded Fairly", The Halifax Daily News (27 April 1998) 10; "Child Abuse Lies Rife: Most Foes in Custody Wars Make False Allegations", The Toronto Sun (10 May 1998) 2; Chris Cobb, "The Politically Incorrect Committee", The Ottawa Citizen (27 April 1998) A5. Laing, supra note 24 at 239-40. See Nahlah Ayed, "Women Rattled By Custody Hearings", The Globe and Mail (15 June 1998) A4; Laing, supra note 24 at 241-46. Parliament of Canada, For the Sake of the Children, Report of the Special Joint Committee on Child Custody and Access, December 1998. ["For the Sake of the Children"]. See, eg, Bala, supra note 6; Laing, supra note 24; Bonnie Diamond, "The Special Joint Committee on Child Custody and Access: A Threat to Women's Equality Rights" (1999) 19 Canadian Woman Studies 182; Susan Boyd, "Can Child Custody Law Move Beyond The Politics of Gender?" (2000) 49 U.N.B.L.J. 157. 2 6  2 7  2 8  2 9  3 0  66  of the Report devoted to "gender bias" focused exclusively on bias against men, failing to even consider the possibility of discrimination against women. In fact, it portrayed 31  mothers as manipulative and selfish, and accused them of making false allegations of child abuse in order to prevent contact between fathers and their children.  Because the  Committee's focus was on false allegations, the serious issue of child sexual abuse was not actually dealt with in the Report.  Rather, child abuse was discussed only in the context of  false allegations made by over zealous or manipulative mothers seeking to deny fathers contact. As Cairns explains, within the framework of discussion offered by the Committee: [Ejfforts to address the abuse of children are sidelined. The focus shifts to parent - fathers in particular - because apparently allegations of abuse ruin the lives of accused parents. Fathers are presented as powerless in the hands of conniving ex-wives and lying children. The vulnerability of children and the impact of abuse on their lives, is muted and not addressed. 34  The most significant aspect of the Committee's Report was its general support for a presumption in favour of shared parenting, though an actual legislative presumption was not recommended.  Throughout the hearings, fathers' rights groups argued that such a  presumption was the only way in which the alleged inequality of custody and access awards could be rectified. They also argued that it would reduce conflict because it would encourage parents to "agree about parenting". Women's groups opposed a shared parenting presumption, arguing that it failed to recognize the ongoing sexual division of caregiving within the family, and would make it easier for abusive fathers to maintain control over their former partners and children, and perpetrate violence against them. Favouring the language of equality and rights presented by fathers, and rejecting the language of care, the Committee endorsed shared parenting and recommended that it replace the language of custody and access. Following the release of the Report the Minister for Justice issued a  For the Sake of the Children, supra note 29 at 15-16. Helen Rhoades has found a similar construction of mothers in Australian family law. The "no-contact mother" has become a central character in the "stock stories" of family law, and a theme of these stories, in which gender is an important issue, is "the power of women to deny contact": see Helen Rhoades, "The 'No Contact Mother': Reconstructions of Motherhood in the Era of the 'New Father'" (2002) 16 Int'l J. L. Pol'y & Fam. 71 at 73. Boyd, supra, note 20 at 202. Elaine Cairns, "Allegations of Child Sexual Abuse in Child Custody Disputes: Myths and Consequences" in Susan Boyd, ed., Child Custody Law Reform: Six Feminist Working Papers (Vancouver: UBC Centre for Feminist Legal Studies, 2000) at 3. While a presumption in favour of shared parenting was not explicitly recommended by the Committee, the effect of the Report and its recommendations was that such a presumption was at least implicitly endorsed. 31  3 2  3 3  3 4  3 5  67  response and stated that the government would develop a co-ordinated response to the issue by 2002. The Minister also commissioned a number of reports and discussion papers to investigate the issues further.  36  In November 2002, as part of the government's response, the Federal-Provincial-Territorial Family Law Committee ("the F-P-T Committee") released Putting Children First: the Final  Federal-Provincial-Territorial  Report on Custody and Access and Child Support ["Putting  37  Children First"].  The F-P-T Committee came into being at the request of the Federal,  Provincial and Territorial Deputy Ministers Responsible for Justice. The F-P-T Committee Report drew on the findings of the Committee's Custody and Access Project which involved extensive research and consultations with family law professionals, advocacy groups and individuals, as well as lengthy federal-provincial-territorial discussions about TO  how any recommendations might be put in place. Putting Children First marked a shift away from the extreme pro-father stance taken in the Special Joint Committee's Report. Putting Children First is a largely measured report, and its recommendations were stronger and more positive than some women's groups anticipated.  The rejection by the F-P-T Committee of a presumption in favour of shared  parenting, its recognition of the impact and prevalence of domestic violence, as well as the recommendation that the maximum contact rule be eliminated, all engendered a degree of optimism amongst women's groups. Importantly for those who support an ethic of care, it 40  suggested that the Committee endorsed at least some elements of the ethic: it recognized the possibility of both beneficial and harmful relationships, and the importance of avoiding presumptions by grounding decision-making in the actual circumstances of children's lives. Women's groups did, however, have some concerns with the F-P-T Report, In particular,  For links to many of these reports see: http://canada.justice.gc.ca/en/ps/pad/reports/index.html. Canada, Final Federal-Provincial-Territorial Report on Custody and Access and Child Support: Putting Children First, November 2002 ["Putting Children First"]. Ibid, at 2. See, eg, Pamela Cross, "Child Custody and Access Committee Releases its Recommendations", 6 December 2002, Ontario Women's Justice Coalition (OWJC). It should be noted however, that the OWJC expressed less optimism about Bill C-22: Pamela Cross, "Custody and Access Lobby Continues", 3 March 2003, Ontario Women's Justice Coalition (OWJC) (both articles available at: www.owjn.org).  3 6  3 7  38  3 9  68  they were concerned by the emphasis in the report on "putting children first" - at times it appeared that the F-P-T Committee did not understand that where there is violence or abuse, the needs and interests of women and children do not necessarily conflict and both need to come "first". It also ignored the fact that children's well being is a function of the 41  well being of their primary caregiver. Numerous studies have shown that the best predictors of children's wellbeing after separation and divorce, in high conflict families, are the psychological wellbeing of the primary caregiver and the children's freedom from continued exposure to conflict and abuse  4 2  Thus, in reality, "putting childrenfirst"may  require putting the needs of their primary caregiver first. Women's groups also expressed concern about the fact that while the impact and prevalence of domestic violence received more attention than it had in For the Sake of the Children, the language used in Putting Children First remained gender-neutral, ignoring the gendered reality of violence within the family.  43  A month after the release of Putting Children First, the federal Minister for Justice announced the government's "Child-Centered Family Justice Strategy". The purpose of the strategy was to "modernize the family justice system in Canada", and to help parents focus on the needs of their children following separation and divorce. The strategy was 44  composed of three pillars - family justice services, legislative reform, and expansion of Unified Family Courts. Taken together, these three pillars were designed to help develop and maintain a child-centred family justice system that: minimizes the potentially negative impact of separation and divorce on children; -  provides parents with the tools they need to reach parenting arrangements that are in the child's best interests; and  Linda Neilson, Spousal Abuse, Children and the Legal System: Final Report for the Canadian Bar Association, Law for the Futures Fund (Fredericton: Muriel McQueen Fergusson Centre for Family Violence Research, UNB, 2001) at note 31. Neilson gives an extensive list of studies that support this assertion. For a discussion of the growing tendency to avoid a gender analysis in government documents see: Boyd, supra note 20 at 207-10. Press Release, Minister of Justice Announces the Child-Centred Family Justice Strategy, Ottawa, December 10, 2002 (available at: http://canada.justice.gc.ca/en/ps/pad/about/index.html). 4 2  4 3  4 4  69  -  ensures that the legal process is less adversarial; only the most difficult cases will go to court.  45  On 10 December, just weeks after the release of Putting Children First, Bill C-22 - a Bill to amend the federal Divorce Act- was introduced into Parliament.  4.2.2  Discursive Themes in the Reform Process  It is evident from reading the government reports, the submissions made to the various committees, and the transcripts of proceedings, that throughout the reform process there has been an ongoing debate about whether family law should be about care and welfare, or about justice, rights and equality. Smart and Neale argue that "the justice versus welfare 46  debate is a long-standing one in legal matters concerning children and the family", with 47  one gaining ascendancy at times while the other is less favoured. Unlike many other areas of the law, Smart and Neale argue that family law has never been simply about justice. It 48  has always included care and welfare-oriented concepts such as equity (in relation to property distribution and the court's parens patriae jurisdiction) and the best interests of the child. In recent years however, the ethic of justice appears to have gained ascendancy, often at the expense of care and those who provide it, most particularly women. Care has not disappeared from family law, but it has taken on new meaning, devalued when performed by women and valorized when invoked by men. For example, fathers have been able to 49  position themselves as advocates for children's welfare and best interests by invoking a child's "right to contact" with his or her father, rather than through the production of any  1 would not want to suggest that care and justice are mutually exclusive. As Robin West argues: "The pursuit of justice, when successful, must also be caring, and the activity of caring, when successful, must be mindful of justice. Put negatively, the zealous pursuit of justice, if neglectful of the ethic of care, will fail not just as a matter of overall virtue, it will fail as a matter of justice. Similarly, the pursuit of care, if neglectful of the demands of justice, will turn out to be, in the long run, not very caring. In a phrase, the conclusion for which I will argue is that "justice must be caring if it is to be just, and that caring must be just if it is to be caring": Robin West, Caring for Justice (New York: New York University Press, 1997) at 24. Carol Smart & Bren Neale, Family Fragments? (Cambridge: Polity Press, 1999) at 187. "Ibid. 46  4 7  4 9  Carol Smart, "Losing the Struggle for Another Voice: The Case of Family Law" (1995) 18 Dal. L.J. 173 at  1 T T  70  evidence of an actual caregiving relationship between father and child.  50  At the same time  that care has been redefined, equality and rights have achieved a new ascendancy, particularly when applied to fathers and children.  In the next section of this chapter I will discuss the main discursive themes that emerged during the law reform process, drawing largely on the Special Joint Committee hearings and the Committee's final Report.  As indicated in the discussion above, over the past two decades the fathers' rights movement has come to dominate the family law reform process. Numerous fathers' rights groups and individual fathers appeared before the various parliamentary committees dealing with custody and access reform, and more often than not the evidence they gave was received positively by the committees,  51  politicians, and the media. The evidence given 52  53  by these individuals and groups relied heavily on the language of equality and rights, reflecting the final stages of Kohlberg's ethic of justice.  54  Susan Boyd, "Backlash and the Construction of Legal Knowledge: The Case of Child Custody Law" (2001) 20 Windsor Y.B. Access Just. 141 at 145. Bonnie Diamond, of the National Association of Women and the Law, argued that non-custodial fathers were given precedence at the Committee hearings and "the tales of "vindictive" ex-wives illegally denying their rights to see their children went unchallenged." On the other hand, women's groups were repeatedly denied access to hearings and when they did appear they were mocked, jeered at, and their presentations were derided. Some women's groups said that they were laughed at when they testified about wife battering and abuse: Diamond, supra note 30 at 182; Michele Landsberg, "How Far Have We Come on Domestic Assault Issues", Toronto Star (14 November 1998) L l . In its May 1999 Response to the Report of the Special Joint Committee on Child Custody and Access, the government rejected a presumption in favour of shared parenting, but endorsed the views of fathers' rights groups that children need contact with both parents: "The Government of Canada endorses the view of the Joint Committee that the family law system must discourage the estrangement of parents from their children. A great deal of literature in this area concludes that children's well-being and development can be detrimentally affected by a long-term or permanent absence of a parent from their lives. Most children want and need contact with both their parents after those parents divorce": Canada, Response to the Report of the Special Joint Committee on Child Custody and Access, May 1999 at 9. See, eg, "Women Making False Claims of Spousal Abuse M.P. Says", The Edmonton Journal, (12 October 1998) A3; Rachel Brighton, "Custody Not Awarded Fairly", The Halifax Daily News (27 April 1998) 10; "Child Abuse Lies Rife: Most Foes in Custody Wars Make False Allegations", The Toronto Sun (10 May 1998) 2; Chris Cobb, "The Politically Incorrect Committee", The Ottawa Citizen (27 April 1998) A5. In fact, Bonnie Diamond asserts that countless letters to the editor and opinion pieces written by women's groups such as NAWL were repeatedly refused publication by editors of Canadian newspapers, including the Ottawa Citizen, the Globe and Mail, and the National Post: Diamond, supra note 30 at 183. Discussed above in chapter 3, pp. 40-42, above. 5 0  5 1  5 2  5 4  71  In making their arguments many fathers' rights advocates drew, somewhat ironically, on the conceptual frameworks developed by feminists in the 1970s. In particular, they relied 55  on first wave feminist notions of formal equality. Given women's growing labour force 56  participation and economic independence, as well as the rise of the image of the 'new father',  it is argued by fathers' rights groups, with the tentative approval of  governments,  58  and the courts, that it is discriminatory to distinguish between the sexes 59  when determining custody and access disputes. For example, Carey Linde, a Vancouver lawyer who appeared before the Special Joint Committee and made arguments that were representative of fathers' rights groups, stated:  Suppose fifty couples - fifty dads andfiftymoms - all come into the courts on the same day. In each case both spouses are seeking an order of exclusive possession of the matrimonial home - seeking to have the other parent kicked out of the house, leaving the kids at home. All the dads and all the moms are equally good parents. All one hundred individuals have exactly the same income and same stable jobs. The kids are all around 10 to 12 years old. If gender equity prevailed in our courts as some would lead us to believe, at the end of the court day 25 men should be ordered out and 25 women ordered out. Half the parents left in the home with the kids should be dads and half moms. If you believe that, you believe in the tooth fairy. 60  Linde's example completely decontextualizes the lives of families, replacing the principle of actuality with a simplistic model of formal equality premised on equal labour  " Boyd, supra note 20 at 205. See, eg, Carey Linde, Brief to Special Joint Committee on Child Custody and Access, 27 April, 1998 (available at: www.divorce-for-men.com/JOINTCOM.doc); Equal Parents of Canada, Brief to Special Joint Committee on Child Custody and Access, 31 March, 1998 (available at: http://www.interlog.com/~parental/committe/brief.htm). Women's groups also invoke equality discourse, though they tend to rely on a substantive equality model to show how women's inequality relates to custody and access decision-making. The term "new father" has emerged during the past decade to label the kinder, more caring, less aggressive father; the father of "companionate marriage" and the egalitarian "symmetrical" family. Controversy surrounds the image and reality of the "new father", and many critics suggest he is more fantasy than reality. For a discussion of the rise of the "new father" see: Richard Collier, "Waiting Till Father Gets Home: The Reconstruction of Fatherhood in Family Law" (1995) 4 Social and Legal Studies 5; Lynne Segal, Slow Motion: Changing Masculinities, Changing Men (London: Virago Press, 1997) 26-59. See, eg, For the Sake of the Children, supra note 29. See, eg, Banks v. Banks, [1987] W.D.F.L. 147 (Ont. U.F.C.) in which Goodearle J. stated at 23-24 that "Such a sociological change [in modern socio-economic fabric] has of course quite obviously made modern day working women much less available to her historically traditional duties in child raising and, by natural social evolution, fathers have sprung into the breach and now participate more and more in the child's daily activities and raising." Linde, supra note 56. 5 6  5 7  5 8  5 9  6 0  72  participation. It also completely ignores the gendered nature of the activity of care. As 61  Boyd argues, the fact remains that in the vast majority of Canadian families women, whether involved in paid labour or not, remain the primary caregivers and homemakers both during and after marriage, and many social and economic structures are based on the assumption that they do so.  Thus, while gender-neutral approaches to caregiving may  diminish the idea that only women can nurture children, they may also render women's caregiving invisible.  Fathers' rights advocates and their supporters also relied on feminist arguments about the need to avoid essentializing men and women as breadwinners and caregivers respectively.  63  They argued that it should not be assumed that men cannot nurture children, or that women are automatically more suited to caregiving. For example, Paul Millar of the Men's Educational Support Association gave evidence to the Special Joint Committee that: Canada has a long history of using the gender of the parents to guide custody decisions. This gender preference is created and led by judges in the courtrooms, yet the evidence does not support that one sex has innately superior parenting abilities. In fact, reliance on gender to determine custody may contribute to negative outcomes for children by failing to provide the best available parent. 64  Finally, fathers' rights advocates were able to "successfully appear to position themselves as advocates on behalf of children, on the basis that children suffer without frequent contact with their fathers." Fathers' rights groups have taken advantage of the simultaneous 65  growth of the children's rights movement - in particular the movement's endorsing of the right of a child to know and be cared for by both of his or her parents - to further their own Housework and the caring for children is evenly shared between parents in only 10 per cent of Canadian families, while 28 per cent of women do most of the work, and 52 per cent do it all: Katherine Marshall, Les parents occupe et le portage des travaux domestiques, Perspectives, Statistiques Canada, cat. 75-00 IF (1993) at 28, cited in Ontario Women's Justice Network on Custody and Access, Brief to the Federal, Provincial, Territorial Family Law Committee on Custody, Access and Child Support, June 2001. Furthermore, while women have increased their labour participation rate dramatically over the last forty years, there has not been any significant increase in men's participation within the home: Statistics Canada, Women in Canada 2000: A Gender-Based Statistical Report (2000) at 97. Boyd, supra note 20 158-59. 6 1  6 2  See, eg, Paul Millar & Sheldon Goldenberg, "Explaining Child Custody Determinations in Canada" (1998) 13C.J.L.S 209.  6 3  Submission of Paul Millar of the Men's Educational Support Association, Special Joint Committee on Child Custody and Access, 29 April 1998, Proceedings of the Special Joint Committee on Child Custody and Access (Ottawa: Public Works and Government Services, 1998) (available online at: www.parl.gc.ca) ["Proceedings"]. Boyd, supra note 20 at 206. 6 4  6 5  73  desires to increase the amount of post-divorce contact between fathers and children and, arguably, the degree of control they have over their former spouses. In fact, many fathers' rights advocates frame the failure to maintain contact between children and their fathers as "child abuse". For example, Heidi Nabert from the National Shared Parenting Association stated to the Special Joint Committee that: Children define themselves by their parents. They form their identity through modeling after their parents. Denying the right of the child to a dependable schedule of parenting contact with the noncustodial parent is nothing less than child abuse, which leads to many costly problems as the child grows, [emphasis added]  In a similar vein, Rick Morrison of Fathers for Justice, stated to the Committee that: The onus has to change so that children are automatically allowed to see both parents. Access is not something that should be argued and fought for. Access should be a child's right. [emphasis added] 67  Fathers rights' groups also asserted that fathers are the stabilizing force in children's lives and that many of the problems plaguing the youth of Canada today, are the result of a "fatherless society". For example, Danny Guspie of the National Association of Shared Parenting stated in the Association's submission to the Special Joint Committee that: [Statistical information backs up the high cost of fatherlessness or father absence. For girls, never feeling worthy of love from a man, it's teenage pregnancies.. .For boys, it's not knowing how to be man or to interact with women. Often violence masks their anger in their father's absence. 68  Guspie went on to say that children have a "God-given right" to shared parenting.  69  Many of the fathers' rights arguments outlined above were endorsed by the Special Joint Committee and continue to find favour in the ongoing family law reform debates. The language of equality in particular appealed to those in charge of reforming family law. The Special Joint Committee generally endorsed the language of formal equality relied upon by  Submission of Heidi Nabert of the National Shared Parenting Association, Special Joint Committee on Child Custody and Access, 11 March 1998, Proceedings, supra note 64. Submission of Rick Morrison of Fathers for Justice, to the Special Joint Committee on Child Custody and Access, 31 March 1998, Proceedings, supra note 64. Submission of Danny Guspie of the National Association of Shared Parenting to the Special Joint Committee on Child Custody and Access, 11 March 1998, Proceedings, supra note 64. Submission of the National Association of Shared Parenting to the Special Joint Committee on Child Custody and Access, 11 March 1998, Proceedings, supra note 64. 6 6  6 7  6 8  6 9  74  the fathers' rights advocates, particularly where it applied to post-divorce parenting. While the Committee did not recommend the introduction of a joint custody presumption - which would have represented the ultimate endorsement of formal equality in child custody decision-making - it did state that it sees "the value of shared decision making and even substantially equal time sharing where appropriate." This was picked up on by the 70  Minister for Justice in her Response to the Report in which she stated that, "I believe the Committee's recommendation to adopt the new term "shared parenting" has promise."  71  Formal equality is a powerful rhetorical tool in a liberal, rights-based society; it seems logical and fair to treat people the same. The equality rhetoric used by fathers' rights groups is particularly powerful "because it appeals to deep and commonly held values, and does so by what appears to be simple and obvious logic - if people are treated differently (according to their gender) then by definition they are not treated equally." Arguably, the 72  equality arguments of fathers' rights groups have particular resonance in Canada given the existence of s. 15 of the Charter.  Knowing that Canada's leading constitutional document  speaks the language of equality, even though it is increasingly interpreted substantively,  74  gives particular force to formal equality arguments made in the context of family law. It is thus not surprising that the Committee was open to equality-based arguments during the hearings.  ,  The views expressed by fathers' rights advocates about the importance of fathers in children's lives, particularly when framed as a child's "right to contact", also found favour with family law reformers. At one point in the Report the Committee refers to the statement  For the Sake of the Children, supra note 29 at 22. Canada, Response to the Report of the Special Joint Committee on Child Custody and Access and Strategy for Reform, 1999. Miranda Kaye & Julia Tolmie, "Discoursing Dads: The Rhetorical Devices of Fathers' Rights Groups" (1998) 22 Melbourne U.L. Rev. 162 at 166. Charter s. 15. For a discussion about the link between the rise of (fathers') rights discourse and the introduction of s. 15 of the Charter see, Boyd, supra note 20 at 106-10. For a discussion of the Supreme Court's interpretation of s. 15 of the Charter see Helena Orton, "Litigating For Equality: LEAF'S Approach to Section 15 of the Charter" in Karen Busby, Lisa Fainstein & Holly Penner, eds., Equality Issues in Family Law: Considerations for Test Case Litigation (Winnipeg: University of Manitoba Legal Research Institute, 1990) at 16-19. The struggle to keep a substantive equality focus in Canadian equality law is ongoing, and it should certainly not be taken for granted: see, eg, Trociuk v Attorney General ofBritish Columbia, Director of Vital Statistics and Reni Ernst 2003 SCC 34. 10  7 1  7 2  73  7 4  75  "that it is in the child's best interests to have continuing contact with both parents after divorce" as a "general rule" of family law decision-making. In the same vein, the 75  Committee recommends that a Preamble should be added to the Divorce Act containing "the principle that divorced parents and their children are entitled to a close and continuous relationship with one another."  Nicholas Bala rightly argues that, "by implication, the  major new focus in this statement is on the relationship of the child to the non-custodial parent."  77  Encouraging relationships between parents and children following divorce is not, in itself, a problem. Arguably the substantial and regular involvement of non-custodial parents in children's lives would greatly alleviate the physical and financial burdens that are usually 7ft  experienced by women following divorce.  Liberal feminists Bartlett and Stack also  tentatively argue that promoting contact between fathers and their children following divorce might encourage men in intact marriages to take on additional responsibility for children. However, the absence of a reference in the Committee's statement to the welfare 79  or safety of children or their caregivers is problematic. Including such a statement in the preamble as a general statement of principle also arguably raises it to the level of a presumption, thus weakening the force of any later provisions relating to safety and violence, such as those that might be found in the best interests test. This is arguably what has happened in Australia, where the child's "right to contact" with both their parents appears as an "objective and principle" underlying the wider children's provisions (Part VII OA  of the Act).  ,  In their empirical study on the Australian Family Law Act 1975 (Cth),  Rhoades and colleagues found that while the Family Court has held that the principles listed in s. 60B(2) provide a "context" for consideration of the best interests principles, and that  ' For the Sake of the Children, supra note 29 at 7. Ibid, at 23. Bala, supra note 6 at 203. For example, Bartlett and Stack argued in the early 1990s that if men were more involved in their children' lives after divorce it would give women more time away from caregiving and allow them to engage in paid work: Katherine Bartlett & Carol Stack, "Joint Custody, Feminism, and the Dependency Dilemma" in Jay Folberg, ed., Joint Custody and Shared Parenting, 2 ed. (New York: Guilford Press, 1991) at 63. Ibid. I am somewhat skeptical about the ability of law reform to actually have any impact on behaviour within intact marriages. Family Law Act 1975 (Cth) s. 60B(2). 5  76  7 7  7 8  nd  79  80  76  no single factor, such as "the right of contact", will be decisive, the placement of the 81  provision as an objective and principle of Part VII has, in practice, made it more likely, at least at the interim hearing stage, that contact will be prioritized. This has had a 82  significant impact on the practice of solicitors and judges who are now more reluctant to request or order "no contact", and on the expectations of fathers who expect contact to be 83  awarded.  84  Despite evidence given by women's groups about the prevalence of family violence, the 85  complex dynamics that contribute to child poverty and delinquency, and the realities of 86  family caregiving patterns, the Committee appeared to endorse both the rights-based and 87  "perils of a fatherless society" arguments made by fathers' rights advocates. As Smart 88  suggested some time ago, the "right of the father", or "fathers' rights", have become so central to family law discourse that "the father" is now understood to be the producer of normalcy:  The father, as constituted in legal discourse, is no longer the paterfamilias, he is the producer of normal, heterosexual children, the stabilizing anti-delinquency agent, and the bringer of realistic values and the desire for achievement. 89  The Committee hearings and Final Report indicate that this discourse of fathers as "producers of normalcy" has permeated the Canadian law reform process.  B andB (Family Law Reform Act 1995) (1997) 21 Fam LR 676 at 735. Helen Rhoades, Reg Graycar & Margaret Harrison, The Family Law Reform Act 1995: The First Three Years (Sydney: University of Sydney & Family Court of Australia, 2000) at 5. Ibid, at 5, 70. Ibid, at 68. 1  82 2  83  84  See, eg, Submission by Carole Curtis of the National Association of Women and the Law, 16 March 1998, Proceedings, supra note 64; Submission by Cori Kalinowski of the Justice Committee of the National Action Committee on the Status of Women, 16 March 1998, Proceedings, supra note 64; Submission of Elaine Teofilovici of YWCA Canada, 16 March 1998, Proceedings, supra note 64. See, eg, Submission by Helen Saravanamutto, Vice-President of the National Council of Women of Canada, 16 March 1998, Proceedings, supra note 64. Submission by Carole Curtis of the National Association of Women and the Law, 16 March 1998, Proceedings, supra note 64. 8 5  8 6  8 7  For example, in its section entitled "Child-Parent Relationships Must Survive Divorce" the Committee quoted generously from submissions that suggested that children are harmed by not having contact with their fathers, and that contact denial may lead to crime, substance abuse, and promiscuity: For the Sake of the Children, supra note 29 at 9. 8 8  Carol Smart, "The Legal and Moral Ordering of Child Custody Law" (1991) 18 J.Law & Soc'y 485 at 48586. 8 9  77  Finally, the Special Joint Committee appeared to endorse the arguments made by fathers about their capacity for caregiving, and the dangers of essentializing women as caregivers and men as breadwinners. This was achieved not by pointing to a change in male caregiving patterns, of which there has been little, but by diminishing the fact that caregiving remains 90  primarily the responsibility of mothers. There was a tendency by the Committee to make women's caregiving work invisible by describing caregiving in gender-neutral terms, or not mentioning it at all. In fact, considerable discussion during the hearings and in the Report was directed towards abolishing any rules or presumptions that might draw a link between caregiving patterns and custody determinations. The Committee made it clear in its Report that both the "tender years doctrine" and the "primary caregiver presumption", neither of which actually exist in Canadian law, should be abolished. While women appearing 91  before the Committee gave evidence of the unequal distribution of caregiver labour within the pre-separation family and its relevance to custody and access decision-making, in the 92  final Report the women's views were always followed by discussions of the benefits of ongoing contact between children and both parents, independent of pre-divorce caregiving patterns. At one point the Committee seemed to endorse the view that fathers should not be disqualified "from real participation in parenting" because of unequal parenting arrangements during the marriage to which women "voluntarily" agreed.  4.3  93  The Ethic of Care and the Reform Process  There was very little discussion of care or caregiving during the Committee hearings or in the Committee's Report, other than in the circumstances described above. Thus while many women gave evidence regarding the unequal distribution of caregiving labour within the pre-separation family, the importance of maintaining and protecting the caregiver/child  A recent Statistics Canada report indicates, "[D]espite the increased participation of women in the labour market, women's share of unpaid work hours has remained quite stable since the early 1960s, at about twothirds of the total": Statistics Canada, supra note 61 at 97. 9U  For the Sake of the Children, supra note 29 at 9-10; See, eg, Submissions by the National Shared Parenting Association and Fathers Are Capable Too, 11 March 1998, Proceedings, supra note 64. See, eg, Submission by Susan Boyd of the Ad Hoc Committee of Child Custody and Access Reform, 19 May 1998, Proceedings, supra note 64. 93 °' For the Sake of the Children, supra note 29 at 33 (emphasis added). 91  9 2  78  relationship, and the dangers of maintaining harmful and violent relationships, the issues were, more often than not, dismissed with sweeping statements about judicial bias against men and the need for children to have ongoing contact with their fathers. There was some evidence provided by fathers of what might be referred to as "caring about" and this 94  evidence appeared to resonate with the Committee. In the next section I will outline the evidence presented to the Committee about care and caregiving and discuss how it was dealt with in the Committee's Report.  4.3.1  Relationships  There was considerable discussion in the Committee Report about the importance of relationships. Throughout the Report the Committee emphasized the importance of maintaining parent/child relationships, entitling a part of Chapter 1 "Child-Parent Relationships Must Survive Divorce". The Report also includes a section called 95  "Widening the Circle: Involving Others with the Children of Divorce", in which the importance of maintaining relationships between children and grandparents and other extended family is discussed. In both sections the Committee details the importance of 96  relationships in children's lives, their need for relationship continuity following separation, and the pain some children experience when they lose a parent through divorce. It is commendable that the Committee was so attentive to the importance of envisioning children in a relational context. However, discussions about relationships were rarely placed in any contextual framework. There was no suggestion that Smart and Neale's "principle of actuality" - that decisions about parents and children derive from the reality 97  of the lives of the people involved - might be relevant. To the contrary relationships, such as those between fathers and children, were presumed to exist and to be healthy.  Because the Committee and many of the witnesses presumed that parent/child relationships existed, were positive, and should be preserved, there was little discussion of the dangers of  Smart, supra note 49 at 176-77. For the Sake of the Children, supra note 29 at 7. Ibid, at 26. Smart & Neale, supra note 47 at 192.  79  maintaining harmful relationships. When I refer to "harmful" relationships I am referring to relationships that both directly and indirectly harm children, including harmful relationships between parents that have an impact on the custodial parent's wellbeing and caregiving capacity, and thus on the child.  When harmful relationships were discussed they were  dismissed as exceptional, or even fantasy - the product of a conniving and manipulative mother. For example, on several occasions the Report stated that it is a "general rule" that it is "in the child's best interests to have continuing contact with both parents after divorce", but that there may be an "exception" to this rule if a child or parent experiences violence at the hands of the other parent." Thus, continuity of relationships is elevated almost to the level of a presumption, putting the onus on the parent who is fearful to show that the relationship is harmful, and therefore an "exception". It appears that the Committee regarded physical violence, and not threats, intimidation or harassment, as the only exception to the contact rule. Thus a father who perpetrates psychological abuse will probably not fall under the exception, despite the relationship clearly being harmful to both the children and their caregiver.  100  Even more disturbing was the Committee's suggestion that an allegation that a particular parent/child relationship is harmful might be little more than the product of a vindictive and  I have defined "harmful relationship" so broadly because research suggests that "children exposed to abuse and violence in the home and children exposed, on a long-term basis, to high levels of conflict between parents (or adult caregivers) are psychologically damaged in much the same way as children subject to child abuse": Robert Geffner, Peter Jaffe & Marlies Sudermann, eds., Children Exposed to Domestic Violence: Current Issues in Research, Intervention, Prevention, and Policy Development (New Haven: Haworth Maltreatment & Trauma Press, 2000); Neilson, supra note 42. Neilson cites the following research to support her assertion: Peter Jaffe, David Wolfe & Susan Wilson, Children of Battered Women (London: Sage, 1990) at 20; Robert Emery, Marriage, Divorce and Children's Adjustment (London: Sage, 1987); Abigail Stewart, Separating Together: How Divorce Transforms Families (New York: Guilford, 1997); A Hetherington, M Cox & R Cox, "Family Interaction and the Social, Emotional, and Cognitive Development of Children Following Divorce" in V Vaughan & T Brazelton eds., The Family: Setting Priorities (New York: Science and Medicine Publishers, 1979). In fact, according to Neilson's survey of social science evidence post-1985, the best predictors of children's well-being after separation and divorce, in high conflict families, are the psychological well-being of the primary caregiver and the children's freedom from exposure to conflict and abuse: Neilson, supra note 42 at note 31. See, eg, For the Sake of the Children, supra note 29 at 7. Focusing on physical violence also ignores the role that psychological violence plays in the control and domination of women by their male partners. As the brief of the Ontario Women's Justice Network explains: "Definitions of violence that ignore issues of domination and control in the family lead to the common belief that separation of parents in relationships where violence is present will eliminate any further exposure of children to violence." Ontario Women's Justice Network, Brief to the Federal, Provincial, Territorial Family Law Committee on Custody, Access and Child Support, 6 June 2001 (available at: www.owjn.org) 9 8  9 9  1 0 0  80  manipulative mother. The Committee devoted a relatively large portion of the Report to discussing the consequences of false allegations of child abuse by one parent (usually mothers) against the other (usually fathers) during custody and access disputes. The 101  Committee seemed to accept, almost without question, the anecdotal evidence provided by fathers about the extent of false allegations. This is despite empirical evidence which suggests that rates of domestic violence and abuse disclosed in court files, reported cases, and responses by lawyers are "more consistent with under-reporting of abuse.. .than with claims that violence and abuse are commonly fabricated or exaggerated in family law matters." In fact, research shows that the number of false allegations in custody and 102  access disputes is small, ranging from between 2-16 per cent.  103  However, the Committee  concluded the section by mentioning jurisdictions where there are criminal penalties for "knowingly" or "willfully" making false allegations, stating that:  While the Committee is convinced that the safety of children must be the principal consideration, Members believe that a legal remedy should also be available to deal with false allegations of abuse. Some members also suggested that the incidence of false allegations in custody/access conflicts warrants a thorough exploration of how affidavits are taken in family law, how pleadings are made, and how solicitor-client privilege may let counselling to make false allegations go undetected. 104  It is clear when reading this section that the Committee held a deep-seated skepticism about allegations of abuse, and thus of the prevalence of harmful relationships. Put simply, allegations of abusive relationships were understood by the Committee as a tactical maneuver used by women (and their lawyers) against men.  Throughout the section of the Report dealing with false allegations it is presumed, both implicitly and explicitly, that it is women making the false allegations and men being falsely accused: For the Sake of the Children, supra note 29 at 75-79. Neilson, supra note 42 at note 92. 101  1 0 2  Studies on false allegations in family law disputes have found that the incidence of exaggerated or false allegations of domestic violence may be about 10 per cent of litigated custody and access cases: Bala, supra note 6 at 195; Rhoades, Graycar & Harrison, supra note 82 at 6-7. Bala argues that more common than false allegations of spousal abuse are false denial or minimization of abusive acts by perpetrators: Bala, supra note 6 at 195. In the case of false allegations of child abuse, research has shown that the number of child sexual abuse allegations made in custody and access disputes is small and that only a small percentage (ranging in the studies from 2-16 per cent) are false: Susan Penfold, "Questionable Beliefs About Child Sexual Abuse Allegations During Custody Disputes" (1997) 14 Can. J. Fam. L. 11 at 15; Thea Brown, Rosemary Sheehan, Margarita Frederico & Lesley Hewitt, Violence in Families - Report Number One: The Management of Child Abuse Allegations in Custody and Access Disputes before the Family Court ofAustralia (Clayton: Monash University, 1998). For a review of the many studies on the issue see: Laing, supra note 24 at 268-70; Cairns, supra note 34 at 1-2. 103  104  For the Sake of the Children, supra note 29 at 79.  81  There was also a tendency in the Report and during the hearings to understand relationships as a function of rights. It was not uncommon for fathers' rights supporters to claim that fathers and children had a "right to a relationship" with each other: Why shouldn't the focus be on the child's right to insist, post-divorce, post-separation, that they have the right to have this equal participation and to benefit from both a mother and a father? 105  Interestingly, neither the Committee nor the fathers' rights advocates noted that while the "right of contact" might be that of the child, the power to enforce it presumably rested in the hands of the father.  In the context of allegations of abuse, Rick Morrison of Fathers for Justice maintained it was a child's right to continue his or her relationship with the alleged abuser: What is agreed to has to be enforced. A child must be able to continue his relationship with both parents and not have it put on hold for weeks and months until all disputes and accusations are dealt with. The onus has to change so that children are automatically allowed to see both parents. Access is not something that should be argued and fought for. Access should be a child's right. 106  Some witnesses also suggested that parents have a right to a relationship with their children: I believe it's important for this Committee to take into account the fact that parents are parents before separation and divorce and they continue to be parents after separation and divorce. Nothing in divorce, in and of itself, disentitles a parent to the inherent rights they have as a parent, and there is no reason for the state to interfere with that or to make presumptions contrary to that unless the conduct of a parent is such that it would otherwise invite the child welfare authorities or the criminal system. [emphasis added] 107  This construction of "relationships as rights" removes relationships from their individual contexts, limiting the analysis of whether the relationships are actually beneficial to the parties involved. Such a conception of relationships is of particular concern in cases where the relationship may be harmful. While some fathers' rights advocates did express concern about children's safety, the tenor of the remarks such as the ones above suggest that at least some witnesses believed that rights, and not children's best interests, should be paramount.  Submission by Sharman Bondy, lawyer, 30 March 1998, Proceedings, supra note 64. Submission by Rick Morrison of Fathers for Justice, 31 March 1998, Proceedings, su Submission by Christian Tacit, lawyer, 3 June 1998, Proceedings, supra note 64. ' t  82  4.3.2  Principle of actuality  While the Committee largely ignored the principle of actuality in the context of relationships, there is some indication that it was open to putting the principle into action to a limited extent by giving children a voice in family law decision-making. The Committee acknowledged that children felt they did not have a voice in proceedings that would 108  determine their future,  and stated that it was "imperative" that children, particularly those  in high conflict situations, have the opportunity to be heard.  109  The Committee ultimately  recommended that "where, in the opinion of the court, the proper protection of the best interests of the child requires it, judges have the power to appoint legal counsel for the child."  110  The Committee did distinguish, however, between listening to children and  requiring children to choose between parents. While the Committee should be commended for recognizing the importance of listening to children, its decision to take this position was premised on a children's rights framework, in particular, a child's "right to contact with both parents".  111  In fact, it appeared that at least some members of the Committee were of  the view that a child's voice should not be taken into account if it conflicts with the maintenance of ongoing relationships: [M]any Members of the Committee became convinced that a child's sudden wish to break off contact with a parent could indicate a major problem, necessitating therapeutic rather than legal intervention. 112  This comment suggests that children's voices will be treated with suspicion if what they demand is the cessation of contact. While therapeutic intervention may assist in determining a child's reasoning, the possible denial of legal intervention in these situations may put a child (and caregiver) at risk. Thus, while the Committee did endorse a greater role for children in family law decision-making, it was ultimately circumscribed by the general principle that relationships between children and their parents should be maintained.  109  m  111  112  For the Sake of the Children, supra note 29 at 12. Ibid, at 14. Ibid, at 15-16. Ibid, at 13-15. Ibid, at 13.  83  4.3.3  Activity of Care  A great deal of evidence about the gendered nature of the activity of care was provided by women's groups, but it was largely disregarded by the Committee. Numerous women's groups and individuals gave evidence that in most families women are the primary caregivers before separation and they challenged the Committee to explain why this arrangement should change after divorce.  While they stated that they would prefer that  men play a more prominent role in child care, there was no evidence that men had actually taken on significantly greater caregiving responsibilities within intact marriages. They also suggested that many men seek shared parenting after divorce not out of a genuine desire to share parenting responsibilities, but in order to continue to exercise control over the decision-making of their former wives or to reduce their child support obligations.  114  Retired Family Court Judge, Herbert Allard, also suggested that,  [M]ost of the fathers with very young children.. .seek custody as an opportunity of delivering the child over to someone else. They rarely give the personal care. It goes to their mother or father, or the new wife or girlfriend or what have you. 115  Women's advocates and their supporters thus strongly opposed any legislative change based on formal equality, such as a presumption in favour of shared parenting, because it would inevitably fail to recognize the ongoing unequal distribution of caregiving responsibilities within the home. As Elaine Teofilovici of Y W C A Canada stated: Marriage breakdown is not an appropriate time to redefine the responsibilities of parents to care for their children in the interests of gender equality. Instead, it is a time to decide on the responsibilities in the best interests of the child, based on the child's existing relationship with each parent as it has developed during the course of the child's lifetime. 116  See, eg, Submission by Susan Boyd of the Ad Hoc Committee of Child Custody and Access Reform, 19 May 1998, Proceedings, supra note 64; Submission by Carole Curtis of the National Association of Women and the Law, 16 March 1998, Proceedings, supra note 64; Submission by Herbert Allard a retired Family Court Judge, 19 April 1998, Proceedings, supra note 64. Submission by Cori Kalinowski of the Justice Committee of the National Action Committee on the Status of Women, 16 March 1998, Proceedings, supra note 64; Submission by Carole Curtis of the National Association of Women and the Law, 16 March 1998, Proceedings, supra note 64; For the Sake of the Children, supra note 29 at 6. Submission by Herbert Allard a retired Family Court Judge, 19 April 1998, Proceedings, supra note 64. Submission by Elaine Teofilovici of YWCA Canada, 16 March 1998, Proceedings, supra note 64. 113  1 1 4  1 1 5  116  84  Despite the strong evidence pertaining to gendered caregiving patterns during marriage, the Committee largely disregarded the submissions of the women's groups and witnesses such as Justice Allard. As stated earlier, discussions of caregiving patterns were usually followed by sweeping statements about the benefits of ongoing relationships between non-custodial parents and their children, and the value of "shared decision making" and "even substantially equal time sharing where appropriate".  117  While many women's groups presented evidence about the activity of "caring for", fathers' rights groups, when they mentioned caring at all, tended to focus on "caring about". For example, many fathers supported a presumption in favour of shared parenting, not because caregiving should be equally divided between parents, but because it would increase the "love" and "affection" in their children's lives:  The advantages of shared parenting are that there's a win-win situation. The children will continue to be with both parents and have loving and nurturing parents. When there's a divorce, the children have more of a need for both members of the family. They have a need for more influence and more affection and love from both parents. If they have just one parent, the insecurity makes them feel stressed.... What I would like to share with you today is that there should be a continuance, a presumption of shared parenting. When sole custody is awarded and the children's father is relegated to that of the uncle dad or the Disneyland dad, the children lose... Kids don't suffer from too much parenting. They need as much love and affection from both parents as absolutely possible. 118  Other witnesses expressed how much fathers "cared about" their children by focusing < on how a loss of father-child contact would cause the child psychological harm.  119  Few  fathers' rights advocates spoke about any caregiving they had undertaken during their marriages, or the caregiving they would perform if shared parenting were to be awarded.  120  117  For the Sake of the Children, supra note 29 at 22. Submission by Malcolm Mansfield of Fathers Are Capable Too (FACT), 11 March 1998, Proceedings, supra note 64. 118  See, eg, submission of Heidi Nabert of the National Shared Parenting Association, 11 March 1998, Proceedings, supra note 64. Interestingly, it was left for women's groups to discuss the emotional harm caused to children, and the financial and time burdens imposed on mothers, when fathers failed to exercise the access they had been awarded: see, eg, Submission by Cori Kalinowski of the National Action Committee on the Status of Women, 16 March 1998, Proceedings, supra note 64. In their study of participants in fathers' rights groups in Ontario, Bertoia and Drakich found that while all the men they interviewed advocated shared parenting, "not one father talked about wanting to have the responsibility of the everyday care of his children". For example, one father stated: "On the one hand I want to fight for custody of the kids. I would like to have them with me full-time instead of with her. On the other hand to do it on my own would be more than I would want right now. 'Cause even having them for the weeks that I had them I wasn't used to it. I just wasn't set up for it. It was an aggravation running here and there and stuff." Others stated that they wanted to "help" with childcare, not realizing that "to speak of "helping" was to 1 1 9  1 2 0  85  In fact, some witnesses - both fathers' rights advocates, mediators and others - suggested that looking to pre-divorce caregiving patterns was inappropriate, because it reflected a voluntary social contract during marriage for which fathers should not be punished: I do not think it should be looked at in terms of this notion of primary caregiver. In fact, that notion bothers me. Many fathers and mothers decided at the time they were married, before they had children, that one would be an at-home parent and the other one would be the working parent outside the home. That was their decision and it was mutual. ... The point is that there is a decision made between the parents. Is it right after marriage to punish a parent because they cannot get the frequency in terms of the hours or minutes spent with a child when in fact he or she - the gender does not matter - may have a very close emotional bond with that child? I would advocate for the quality of the relationship and not the frequency of the minutes and the hours some people are counting. 121  Thus, in the view of this witness a history of "caring for" should be irrelevant to custody and access decision-making, while "caring about" should be fundamental.  There was some suggestion that the language of "caring about" resonated with the Committee. For example, the Committee frequently expressed sympathy for fathers who cared deeply about their children, and had lost contact with them.  122  However, there was no  consideration by the Committee of whether these same fathers had actually played any caregiving role in their children's lives. In contrast, little sympathy was expressed for the mothers who both cared for and about their children, both during and after marriage. In fact, their actions were "seen as being as normal as breathing and thus as worthy of as much acknowledgement as such taken for granted activities usually generate."  The recent ideological shift towards a formal equality and rights-based approach to family law, premised largely on the arguments of fathers' rights groups, has meant that the importance of care and caregiving in family law decision-making has been largely ignored. Throughout the law reform debates and in the Committee's Report, the ethic of care was largely overshadowed by the ethic of justice. Given this fact it would not be surprising if  delegate the task of child care to mothers." Ultimately, Bertoia and Drakich conclude that fathers take for granted mothers' primary responsibility for child care when they talk of "joint custody": Carl Bertoia & Janice Drakich, "The Fathers' Rights Movement: Contradictions in Rhetoric and Practice" (1993) 14 Journal of Family Issues 592 at 601-03. Submission by Howard Irving of the Faculty of Social Work, University of Toronto (and mediator), 25 March 1998, Proceedings, supra note 64. For the Sake of the Children, supra note 29 at 7. Smart, supra note 49 at 177. 121  122  1 2 3  86  Bill C-22, though touted as "child-centred legislation", failed to incorporate the basic tenets of an ethic of care.  4.4  The Ethic of Care and Bill C-22  In this section I will analyze the degree to which Bill C-22 incorporates an ethic of care in its provisions, focusing on the three elements of the ethic identified by Gilligan: (a) relationships; (b) the principle of actuality; and (c) the activity of care. In analyzing the Bill I will focus in particular on the best interests criteria outlined in s. 16.2(2). Throughout the discussion I will consider how Bill C-22 might be amended so that care is prioritized.  As discussed earlier, Bill C-22 was introduced into Parliament on 10 December 2002, just weeks after the release of Putting Children First. The legislation reflects many of the discussions and recommendations found in Putting Children First, with some significant exceptions. In considering Bill C-22,1 will draw on the analysis in Putting Children First and the Minister's Second Reading Speech in an effort to shed some light on the legislative intent behind the Bill's provisions.  It is clear from reading the Bill that, for those who advocate a greater role for the ethic of care in family law decision-making, it represents a significant improvement on the recommendations made in For the Sake of the Children. The equality, rights and justice rhetoric that played such a dominant role in the Committee hearings and the Report is less apparent in the Bill, and there is a greater awareness of the importance of care and caregiving, and the complexities of relationships. For example, the Bill does not include a presumption in favour of shared parenting, it diminishes the "friendly parent" rule, and includes specific provisions in the best interests test dealing with pre-separation caregiving and family violence. A l l of this suggests that much of the formal equality and rights rhetoric of the fathers' rights groups was ultimately not endorsed. However, the Bill does not go as far as Putting Children First in protecting children and their caregivers from harmful relationships, it fails to incorporate the principle of actuality, and it still leaves open the possibility that in its interpretation the Bill will be used to justify an assumption that  87  ongoing contact with both parents is in children's best interests. These raise significant concerns for those who advocate for a greater role for the ethic of care in family law decision-making.  4.4.1  Bill C-22: Overall Structure  Before discussing the extent to which the individual provisions of C-22 incorporate an ethic of care, I will outline the basic structure of the Bill. Following the British and Australian examples,  124  the Bill eliminates the language of "custody" and "access", but unlike the  other jurisdictions,  125  it replaces them with "parenting orders" that regulate "the exercise of  parental responsibilities".  Like the Australian and British systems, the "aim of the change  to language of parental responsibilities is to create a new normative standard of cooperative parenting behaviour for separated couples with children."  127  "Parenting orders"  can be sought by either or both spouses and, with the leave of the court, "by a person, other than a spouse, who is a parent, stands in the place of a parent or intends to stand in the place of a parent." "Parenting orders" can include direction as to "parenting time, by way of a 128  1 90  schedule unless a schedule is unnecessary in the circumstances",  decision-making  responsibilities, including major decisions about health care, education and religious upbringing, as well as responsibility for making decisions relating to a specific matter.  130  Thus, in contrast to the British and Australian systems, Bill C-22 leaves the content of parenting orders relatively vague, giving judges a great deal of discretion. This approach reflects the new co-operative parenting approach to family law decision-making which  While the British and Australian statutes are similar they are not identical. For a comparative analysis of the two Acts see: John Dewar, "The Family Law Reform Act 1995 (Cth) and the Children Act 1989 (UK) Compared - Twins or Distant Cousins" (1996) 10 Austl. J. Fam. L. 18. In contrast, in Australia custody and access orders were replaced with "residence", "contact" and "specific issue" orders (Family Law Act 1975 (Cth) s. 64B), while in the UK they were replaced with "residence", "contact", "prohibited steps" and "specific issue" orders: Children Act 1989 (UK) s. 8. Bill C-22, s. 16(1). Susan Boyd, "From Custody and Access to Parental Responsibilities? What Does Bill C-22 Offer to Women and Children?" Jurisfemme, vol 22(1), Fall 2002 (available at: http://www.nawl.ca/v22-nol.htm). Bill C-22, ss. 16(l)(b), 16(3). Parenting time is defined as "the period that a child spends under the care of a spouse or other person, whether or not the child is physically with that spouse or other person during all of that period": Bill C-22, s. 16(4). Bill C-22, s. 16(5)(a)-(d). 1Z4  125  1 2 6  1 2 7  1 2 8  1 2 9  1 3 0  88  leaves the allocation of parenting responsibilities up to parents and, where they cannot agree, counsellors, mediators, and finally, judges.  The second important element in Bill C-22 is the introduction of twelve "needs and circumstances of the child" that judges shall consider when determining what is in the best interests of the child. These criteria are designed to guide judges in their decision-making. Amongst other things, the factors direct judges to consider "family violence", "history of care for the child",  132  131  the  the "nature, strength and stability of the relationship 1 33  between the child and each spouse",  "the ability of each person in respect of whom the  order would apply to care for and meet the needs of the child", linguistic, religious and spiritual upbringing and heritage."  135  134  and the child's "cultural,  Finally, judges must consider  "the child's views and preferences, to the extent that those can be reasonably ascertained."  136  While the explicit "maximum contact" (or "friendly parent") rule that exists in the current 137  Divorce Act  has been eliminated, a weaker version reappears in s. 16.2(2)(b) where it  states that the judge shall consider "the benefit to the child of developing and maintaining meaningful relationships with both spouses, and each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse."  138  When  s.l6.2(2)(b) is read in conjunction with s. 16.2(2)(k), which requires the court to consider "the ability of each person in respect of whom the order would apply to communicate and cooperate on issues affecting the child",  3 1  3 2  3 3  34 135  3 6  37 3 8  3 9  139  it appears that the friendly parent rule remains  Bill C-22, s. 16.2(2)(d). Bill C-22, s. 16.2(2)(c). Bill C-22, s. 16.2(2)(h).  Bill C-22, s. 16.2(2)0). Bill C-22, s. 16.2(2)(e). Bill C-22, s. 16.2(2)(f). Divorce Act R.S.C. 1985, c.3 (2 Supp.) s. 16(10). Bill C-22, s. 16.2(2)(b). Bill C-22, s. 16.2(2)(k). nd  It is possible that a generous reading of s. 16.2(2)(k) allows a judge to consider a parent's inability to communicate and/or co-operate and make a decision against shared parenting accordingly. However, the history of the friendly parent rule in the Divorce Act suggests that it would not be read in such a manner. 140  89  If enacted, Bill C-22 will radically change child custody and access decision-making in Canada. While it does not include a presumption in favour of shared parenting, the best interests provisions encourage contact with few provisos. Ultimately, it will be up to the judges, mediators, lawyers and parents to determine how it will be applied in practice.  4.4.2  Analyzing the specific provisions of Bill C-22  In the next section I will look more closely at the proposed best interests criteria to determine the degree to which they incorporate an ethic of care, using the three factors identified by Gilligan (and discussed in Chapter 3).  4.4.2.1  Relationships  Bill C-22 does a good job of recognizing the child's relational existence. Within the best interests test it requires the court to consider the child's physical, emotional and psychological needs,  the benefit to the child of developing and maintaining relationships  141  with his or her parents, child and each spouse,  142  143  the nature, strength and stability of the relationship between the and the nature, strength and stability of the relationship between  the child and each sibling, grandparent and any other significant person in the child's life.  144  Each of these provisions both acknowledges the importance of relationships in children's lives and, to some degree, permits the courts to evaluate these relationships. The provision that requires the court to consider the nature, strength and stability of a child's relationships with "significant persons" in a child's life also ensures that non-biological relationships, such as those between a child and psychological parent or other parental figure, whether a step parent or a same-sex co-parent, are valued and protected.  While the court is required to evaluate the "nature, strength and stability" of the child  s  various relationships, it is of concern that the legislation does not include an implicit or  141  1 4 2  143  1 4 4  Bill Bill Bill Bill  C-22.S. C-22, s. C-22, s. C-22, s.  16.2(2)(a). 16.2(2)(b). 16.2(2)(h). 16.2(2)(i).  90  explicit reference within these clauses to children's safety or the potential for harmful relationships. In fact, s 16.2(2)(b), which requires the court to consider "the benefit to the child of developing and maintaining meaningful relationships with both spouses", seems to imply that the maintenance of all parental relationships is beneficial to children. This is in contrast even to the current maximum contact rule which includes a "best interests" caveat.  145  Interestingly, the F-P-T Committee took quite a different approach. In the F-P-T  Committee's report, it recommended that, with "a view to ensuring that no court orders are made which may result in prejudice to the safety of children and place them at risk", legislative criteria defining best interests should include the proviso that contact with both parents should be facilitated only "when it is safe and positive to do so. "  1 4 6  When  discussing this provision the F-P-T Committee stated: The current regime has been criticized as placing over-emphasis on contact, sometimes at the risk of the child. A child's needs must be considered in the overall context of the child's life and circumstances. Making one criterion more important than another seems contrary to a child-centred approach. [emphasis added] 147  The F-P-T Committee made it very clear that relationships should only be preserved when they are both positive and safe, thus acknowledging Robin West's point that relationships can both enlarge and diminish the individuals who participate in them.  148  In contrast, Bill  C-22 does not appear to acknowledge the possibility of harmful parent/child relationships, and instead seems to promote contact even when there is a possibility of harm.  Bill C-22 does include a provision within the best interests criteria that requires the court to consider the impact of family violence on both the child and other family members:  s. 16.2(2) ... (d) any family violence, including its impact on (i) the safety of the child and other family members (ii) the child's general well-being  The current s. 16(10) of the Divorce Act states, "In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact": Divorce Act, s. 16(10). Putting Children First, supra note 37 at recommendation 8. Ibid, at 33. West, supra note 46 at 2. 1 4 5  146  u 7  1 4 8  91  (iii) the ability of the person engaged in the family violence to care for and meet the needs of the child, and (iv) the appropriateness of making an order that would require the spouses to cooperate on issues affecting the child. 149  This section obviously directs the court to evaluate whether the relationship between the child and parent is free from violence, and therefore safe. It also directs the court to evaluate the impact of any violence on other family members, including the child's primary caregiver. Both of these directives have the potential to protect children from harmful relationships. However, by not including questions of safety within the relationship-based criteria, such as ss. 16.2(2)(b),(h) and (i), and instead treating family violence as a discrete category of evaluation under the best interests test, the legislation sets up a system of competing criteria with no direction as to which one should take precedence. The impact of family violence must compete with the "benefit" of maintaining contact in a way that it would not have had the recommendations of the F-P-T Committee been followed.  It should also be noted that the F-P-T Committee directed that relationships should only be maintained when it is "safe and positive''' to do so. The reference to "positive" relationships suggests that the F-P-T Committee was concerned not only with the impact of physical violence, but also with the effects of psychological harm. In contrast, Bill C-22 only makes reference to "family violence" which is defined in the Bill to include "behaviour by a family member causing or attempting to cause physical harm to the child or another family member, or causing the child or another family member to reasonably fear for his or her safety or that of another person."  150  The emphasis is clearly on physical harm, though the  latter part of the definition suggests that some forms of psychological abuse may be included. By focusing almost exclusively on physical harm, the approach taken by Bill C 22 seriously underestimates the complexities of human relationships, and the reality of psychological abuse.  151  Based on what we have seen from jurisdictions such as Australia, it  ultimately fails to protect children and their caregivers from harmful relationships.  152  Bill C-22, s 16.2(2)(d). Bill C-22, s 16.2(3). Boyd, supra note 127. While the Australian Family Law Act 1975 (Cth) does include "psychological abuse" within its definition of family violence, there is little evidence that it is taken into account in practice: Rhoades, Graycar & Harrison, supra note 82 at 64-82; Kathryn Rendell, Zoe Rathus & Angela Lynch, An Unacceptable Risk: A 1 4 9  1 5 0  151  1 5 2  92  It is possible that Bill C-22 might better prioritize positive relationships, and protect against harmful ones, if s. 16.2(2)(b) were amended to include the proviso that contact between children and their parents should be developed and maintained only "when it is safe and positive to do so". Amending the section in such a way would ensure that safety, both physical and psychological, is considered at the very moment that the court is deciding whether a child's relationship with his or her parent(s) should be maintained. It would also prevent the court from making an assumption that relationships between children and their parents are always positive, or that contact is always in children's best interests.  The Bill might also be improved if it were amended to include a clause relating to family violence that appears outside of the best interests test, in addition to the section that is currently included within the test. Such an approach would bring greater attention to the possibility of harmful relationships, and would ensure that the issue of family violence does not have to compete with other best interest criteria for the court's attention. As Nicholas Bala argues, the physical safety of children and their caregivers should not be another "best interests" factor that is "weighed up" against other criteria as part of a balancing act 153  performed by the court.  Rather, before even considering the possibility of contact, the  court should be satisfied that any parenting arrangements being proposed do not pose a significant risk of harm to the child or his or her caregiver. The Australian Family Law Act 1975 (Cth) offers an example of where considerations of family violence are included both within the best interests criteria and as a separate section within the legislation. Family violence is referred to on several occasions in the Family Law Act outside of the best interests criteria. Most significantly s. 43, which contains the general principles which the Family Court is to have regard to in the exercise of its jurisdiction, includes "the need to ensure safety from family violence."  154  In addition, s. 68K requires  Report on Child Contact Arrangements where there is Violence in the Family, Abuse Free Contact Group (auspiced by the Women's Legal Service Inc.), Brisbane, January 2002. Nicholas Bala, "The Best Interests of the Child in The Post-Modern Era: A Central but Paradoxical Concept", Law Society of Upper Canada Special Lectures 2000: Family Law, A Colloquium on "Best Interests of the Child:, Osgoode Hall, 13 December 1999 at 32 Family Law Act 1975 (Cth) s. 43. 154  93  courts to consider the risk of family violence in determining what parenting order to make, and s. 68J requires a party to residence and contact proceedings to inform the court of any family violence order about which they are aware. In the case of the best interests test, the court must consider the need to protect children from "physical or psychological harm" caused by being "subjected or exposed to abuse, ill-treatment, violence or other behaviour", or by being "directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person."  155  While empirical  studies of the Australian legislation suggest that violence still does not receive the attention it should,  156  the presence of several sections dealing with it can only assist in the prevention  of ongoing harmful relationships between parents and children.  4.4.2.2  Principle of Actuality  As discussed above, the provisions in the best interests test of Bill C-22 directing the court to consider the "nature, strength and stability" of the child's relationships with his or her parents and caregivers, permit the court to assess, to some extent, the individual circumstances of each child's life. Unfortunately, however, these sections must be balanced with s. 16.2(2)(b), which talks about the "benefit to the child of developing and maintaining meaningful relationships with both spouses." The latter provision, which appears to apply a universal standard to individual children, makes it difficult forjudges to truly assess the concrete circumstances of each child's life. In order to ensure that decision-making is based on the realities of children's lives it might be appropriate to amend s 16.2(2)(b) so that it no longer assumes a "benefit to the child" in developing and maintaining relationships with both parents. This could probably be achieved by including a proviso in s. 16.2(2)(b) that relationships should be maintained only when it is both positive and safe to do so. By indicating that relationships must be both positive and safe, the court will have the discretion to limit relationships that are psychologically harmful, but where physical safety is not per se an issue.  Family Law Act 1975 (Cth) s. 68F(2)(g). See, eg, Rhoades, Graycar & Harrison, supra note 82 at 71. This may well be because the violence provisions in the Australian Family Law Act 1975 (Cth) are limited by the overarching emphasis on contact. 155  156  94  As stated in Chapter 3, the principle of actuality necessarily requires that children have a voice in decision-making about their lives. If our conceptualization of the child is grounded in the practical reality of each child's life, then we must talk and listen to children. In their study on children who had experienced parental separation, Smart, Neale and Wade found that the way in which children and their parents conceptualize their families may diverge in 157  the aftermath of separation or divorce.  For example, some of the children they  interviewed drew a distinction between "families as institutions rooted in ties of law (affinity) and blood (consanguinity), and families as relationships based on ties of 1 SR  affection."  130  It was the children's view that it was the latter (rather than the former) that  was the essence of "family life."  159  As one of the children explained, "being a family in the  formal sense is not the same as feeling like a family. Affection is not something that can be legally enforced."  160  Given that views on what makes up family life are not confined to  sociologists, politicians or psychologists, or even to adults more generally, but can be part of the thinking of children too, it is important that we listen to what children have to say about their perceptions of family life. Bill C-22 makes some effort to ensure that children's voices are heard. Section 16.2(2)(f) states that the court, when determining what is in the best interests of the child, must consider "the child's views and preferences, to the extent that those can be reasonably ascertained."  161  This provision reflects the recommendations of the F-P-T Committee that  the need of children to have their perspectives heard in formal forums and through appropriate processes be treated as "a matter of priority."  Unfortunately, Bill C-22 gives no indication of how the child's views and preferences are to be ascertained, or who might pay for the counsellors, psychologists, or lawyers who might  Carol Smart, Bren Neale & Amanda Wade, The Changing Experience of Childhood: Families and Divorce (Cambridge: Polity Press, 2001) at 42. 157  158 159  160  Ibid, at 43. Ibid. Ibid.  161  Bill C-22, s. 16.2(2)(f).  162  Putting Children First, supra note 37 at 36.  95  be employed to talk to the child or relay his or her views to the court.  163  In the federal  government's Child-Centred Family Justice Strategy a significant amount of new funding is allocated to "services for families", but the services listed (parent education courses, mediation, and other court-related services) do not include any that are specifically directed towards ensuring that children have a voice in proceedings that affect them.  164  Some doubt  arises about the likelihood of children's voices being heard when no infrastructure or financial support is directed towards actually ascertaining their views. While many provinces already use counsellors or expert reports to express children's views to the court,  165  it is obvious from the comments made by children who appeared before the  Special Joint Committee and the F-P-T Committee that they do not feel that the current system adequately meets their needs.  166  Bill C-22, while including a specific provision  directing the court to consider children's views and preferences, makes little tangible effort to improve the current regime.  If we are to ensure that children have a voice in family law Bill C-22 must include specific provisions, outside of the best interests test, that ensure that children have a voice in decision-making about their lives. These provisions might include how children's views are to be ascertained and in what circumstances children would be entitled to access a lawyer. The Australian Family Law Act offers some indication of what these provisions might look like and how they might work in practice. Section 68G(2) of the Family Law Act provides details of how children's views are to be ascertained: (2) The court may inform itself of wishes expressed by a child: (a) by having regard to anything contained in a report given to the court...; or (b) subject to the applicable Rules of Court, by such other means as the court thinks appropriate.  This may be a result of the division between federal, provincial and territorial jurisdictional responsibility. It therefore might need to be addressed through an agreement or protocol between the federal, provincial and territorial governments that details responsibility and resource allocation issues. Press Release, Minister of Justice Announces the Child-Centred Family Justice Strategy, Ottawa, December 10, 2002 (available at: http://canada.justice.gc.ca/en/ps/pad/about/index.html). Though it should be noted that because of funding cuts across many provinces, there are enormous delays in accessing these services. See, eg, Putting Children First, supra note 37 at 75; For the Sake of the Children, supra note 29 at 11-15. Children participated in the Special Joint Committee hearings and in the Putting Children First consultations. 163  1 6 4  165  166  96  In a recent Family Court of Australia decision, ZNv. YHand the Child Representative [2002] FamCA 453 [ZNv. YH], Nicholson C.J. held that s 68G(2)(b) permitted him to meet with the children involved in a relocation case to discuss their views.  167  He made it clear to  the children that he would not necessarily act upon their views, but that he would take them into account. In making his decision he stated:  In this case I thought that because of the age of the older children and because of the time that had passed since the counsellor's report, it might be helpful for them to have an opportunity to express their views to me. I also had some concerns about whether the views of the children recorded by the counsellor represented their real views and whether they might in any event have changed with the passage of time. 168  While Nicholson C.J. was cautious about the meetings and did not profess to be an expert in interviewing children,  169  he decided that, in light of research pertaining to even young  children's capacity to convey information about their needs and wishes and Australia's responsibilities under the Convention on the Rights of the Child, the children in the case had a right to be heard and to have their views taken into account in the decision-making process.  170  In reaching his decision Nicholson C.J. cited a New Zealand study on children  and family law decision-making in which it was stated:  One of the most important conclusions to be drawn from our study is that children do have views about their lives after parental separation and that they are highly capable of expressing their views. Even children as young as five years' of age can talk about their feelings and what situations mean to them despite the complexity of the experiences . . . [T]he view that children's capacities to understand and participate have been underestimated is reinforced for us by this study. (emphasis added; footnotes omitted) 171  The Australian experience gives some indication of how legislation can be designed to ensure that children's voices are heard. Nicholson C.J.'s decision in ZNv.  YH also provides  an example of how children's views can be ascertained without making them feel like they  167 168 169  ZN v. YH and the Child Representative [2002] FamCA 453 V'ZNv YH1 ZNv. YH, at para. 105.  In fact, Nicholson C.J. cited several studies and cases that warn of the dangers of non-experts, including judges, interviewing children: Judy Cashmore, "Children's Participation in Family Law Matters" in C Hallett & A Prout, Hearing the Voices of Children: Social Policy for a New Century, Falmer Press, forthcoming; J. Doogue and S. Blackwell "How do we Best Serve Children in Proceedings in the Family Court?" Volume 3, Part 8, Butterworths Family Law Journal fNew Zealand), December 2000; B v. B (Minors) (Interviews and Listing Arrangements) (1994) 2 F L R 489 per Nourse L.J. and Wall J. ZNv. YH, at paras. 111-13. m  Ibid, at para. 113, citing Children's Issues Centre, Access and Other Post-Separation Issues - a Qualitative Study Research Report, University of Otago, July 1997. 1 7 1  97  are being forced to choose between their parents. While Nicholson C.J. felt that he had the requisite skills to conduct the interviews, he recommended that judges receive training i n both interviewing and interpreting children's v i e w s .  172  In order to ensure that Canadian  family law decision-making is grounded i n the concrete circumstances o f children's lives it may be o f assistance to consider the Australian model.  4.4.2.3  Activity of care  Finally, B i l l C-22 recognizes i n s. 16.2(2)(c) the importance o f caregiving by requiring the court, when determining the best interests o f the child, to consider the "history o f care for the child."  This significant inclusion w i l l hopefully be interpreted as demanding that  judges consider who, i f anyone, has acted as the primary caregiver i n a child's life and/or taken caregiving responsibility for the child. If interpreted in this manner, the section w i l l permit the court to acknowledge the significant caregiving role performed by the vast majority o f Canadian mothers. It w i l l also recognize and reward fathers who have taken a significant caregiving role in their children's lives. Section 16.2(2)(j) also directs the court to focus on the activity o f care. The section requires the court to consider "the ability o f each person in respect o f whom the order would apply to care for and meet the needs o f the child."  174  Thus, "caring about" is not enough; a person i n whose favour an order is made  must show that he or she can actually care for the c h i l d .  175  While ss. 16.2(2)(j) and (c) arguably force the court to consider the importance o f the activity o f care i n children's lives, it should be noted that focusing mainly o n the physical acts o f caring is problematic. Focusing on physical caregiving may act to discriminate against those who cannot provide physical care because o f disability, poverty, or abuse, as well as those whose caregiving patterns do not follow white, middle class, heterosexual  172  173  174  Ibid, at para. 109. Bill C-22, s. 16.2(2)(c). Bill C-22, s. 16.2(2)0)  While it is laudable that ss. 16.2(2)(c) and Q) direct judges to take into account who has undertaken the actual activity of caring for the child, it will still be necessary to overcome the current tendency on the part of judges to give too much weight to the limited "caring for" that some fathers do undertake (while at the same time diminishing the extensive caring for undertaken by mothers). See, Smart, supra note 49 at 177-78  98  11ft  models.  For example, Mosoff argues that emphasizing physical caregiving in custody  and access decision-making may actually disadvantage women with disabilities who may have to delegate physical caregiving tasks to others, while taking on a more supervisory role themselves.  177  In its 1994 brief to the Federal/Provincial/Territorial Family Law  Committee, the Canadian Advisory Council on the Status of Women attempted to deal with this issue by recommending that questions about caregiving in family law should take into account overall caregiving responsibility, including "all of the physical, emotional, social, and relational tasks of parenting."  178  Such an approach would avoid an exclusive focus on  the physical act of caregiving, or caregiving standards that might discriminate on the basis of difference. More positively, it would direct focus to who actually bears caregiving responsibility. The only weakness in this approach is that in shifting the focus away for just physical caregiving, it opens space for fathers who hire housekeepers or delegate caregiving to new wives or grandmothers. This obviously defeats the purpose of the recommendation. Despite the reservations outlined above, both of the caregiving provisions in Bill C-22 are significant steps forward for those who endorse an ethic of care. Unfortunately, however, the courts are given no direction as to how much weight to award to each of the sections in any given case. The question of weighting provisions is one that will always plague a criteria-based best interests test. Courts will constantly have to balance criteria and it is inevitable that some criteria will be seen as more important than others. Given the highly contentious environment in which family law decision-making is currently conducted in Canada, this is problematic. For this reason, I have suggested that in some cases separate sections, such as those dealing with family violence and children's voices, be included in Bill C-22 outside of the best interests test to ensure that they are prioritized by the courts. This does not mean that reference to these issues should not also remain within the best  For a discussion of the impact of disability, race, culture and sexuality on caregiving patterns see: Susan Boyd, Helen Rhoades & Kate Burns, "The Politics of the Primary Caregiver Assumption: A Conversation" (1999) 13 Austl. J. Fam. L 233 at 239-41; Judith Mosoff, "A Jury Dressed in Medical White and Judicial Black: Mothers with Mental Health Histories in Child Welfare and Custody" in Susan Boyd, ed., Challenging 1 7 6  the Public/Private Divide: Feminism, Law, and Public Policy (Toronto: University of Toronto Press, 1997) 227; Marlee Kline, "Complicating the Ideology of Motherhood: Child Welfare and First Nations Women" (1993) 18 Queen's L.J. 306. 1 7 7  Mosoff, ibid, at 243-44.  Canadian Advisory Council on the Status of Women, Child Custody and Access Policy: A Brief to the Federal/Provincial/Territorial Family Law Committee (Ottawa: C A C S W , 1994) at 14. 1 7 8  99  interests criteria. Rather they should be included twice in an effort to emphasize their importance.  It might also be of assistance if the Bill were to include a Preamble or an Objectives and Principles clause that emphasized the ethic of care. A Preamble, while having no technical significance, would set the tone for custody and access decision-making. In their comments on Bill C-22, both Susan Boyd and N A W L have recommended the inclusion of a Preamble, though their focus has been on the importance of recognizing the historic and ongoing inequality and disproportionate responsibilities for childcare of women, as well as the gendered nature of power, control and violence.  179  While these would be laudable  inclusions, a Preamble might also play an important role in emphasizing the importance of an ethic of care in family law decision-making. A Preamble might be worded in the following way:  It is hereby recognized that: (a) Children benefit from stability and continuity in caregiving patterns and caregiving relationships; (b) Families come in many diverse forms and custody and access decision-making must therefore be based on the individualized circumstances of each family; (c) Pre-separation caregiving patterns provide a valuable indication of what postseparation caregiving arrangements might be appropriate; and (d) Caregiving labour within the home has historically been and, in many families continues to be, a gendered practice.  A Preamble worded in such a manner would draw attention to the significance of preseparation caregiving patterns and relationships, the importance of basing decision-making on the individualized circumstances of each family, and the gendered division of caregiving labour that continues to characterize most Canadian families.  Boyd, supra, note 127; National Association of Women and the Law (Family Law Working Group), "Response to Bill C-22 An Act to Amend the Divorce Act", July 2003 (available at: www.nawl.ca).  100  4.5  Conclusion  In seeking to incorporate an ethic of care into custody and access decision-making I do not wish to supplant the ethic of justice. Rather I want to establish care as a value on par with justice. I start with Robin West's premise that "justice must be caring if it is to be just, and caring must be just if it is to be caring." Justice should therefore remain an ideal of 180  human communities, but it ought to be an interactive human value; it cannot be achieved through a decontextualized reading of a dispute. It requires actively engaging with the parties and the realities of their lives. In the context of custody and access decision-making this might mean that "justice", which is traditionally understood to rely on objectivity, rights, and formal equality, might need to be revisioned so that it is more "interactive", and thus better able to respond to the complex dynamics of individual families.  While justice should remain central to legal decision-making, in the context of custody and access law I agree with Virginia Held's view that care and its related considerations are the wider framework - or network - within which room should be made for justice.  It: is inevitable that the ethic of care may sometimes conflict with certain aspects of what' we currently understand to be included within an ethic of justice, such as formal equality and 181  rights. When these situations arise I do not think that justice must always yield to care, 182  but we may need to accept that harmony between the two cannot always be achieved. As Sevenhuijsen states:  1 8 0  West, supra note 46 at 24.  Virginia Held, "Liberalism and the Ethic of Care", Legal Theory Workshop Series, Faculty of Law, University of Toronto, 10 January 1997 at 16. 1 8 1  Some feminists have suggested that care and justice need not conflict. For example, Rhada Jhappan argues that our concept of "justice" could be revisioned so that it is not in permanent binary opposition to "care". In Jhappan's view, Carol Gilligan's work on the ethic of care may have done a disservice to justice by creating a permanent dichotomy between justice and care, where justice is associated with male norms. Jhappan suggests that this dichotomy has impeded the development of a feminist "justice jurisprudence". As a result, feminists have found it necessary to "squeeze all issues into the equality box" on the basis that "justice" is too closely associated with an objective, atomistic, individualistic, male norm. Jhappan suggests that we need to "rehabilitate justice" and revision it, particularly in the public domain, so that it incorporates both the distribution of benefits and burdens, especially in the form of material goods, and the social and institutional contexts that shape the patterns of distribution: Rhada Jhappan, "The Equality Pit or the Rehabilitation of Justice" (1998) 10 C.J.W.L. 60 at 82-85. Similar arguments have been made by Iris Marion Young: Iris Marion Young, Justice and the Politics of Difference (New Jersey: Princeton University Press, 1990). 1 8 2  101  The feminist ethic of care.. .offers a critical perspective on the idea that it is possible to achieve entirely just and harmonious laws in [custody and access decision-making]. The emotional bond between parents and children is, after all, so complex that there is no single satisfactory solution. The law should pay attention precisely to the fragility of the relationships between people and to the different situations in which people need the law because they are unable to sort things out for themselves... There thus needs to be a 'pluriform' law which takes account of different situations and which abstains as far as possible from positing an abstract idea of 'good family life'. 183  Unlike the ethic of justice or the best interests principle, the ethic of care, because it is based on the realities of people's lives, is best able to meet the diverse needs of children and their families. Furthermore, because it focuses on actual relationships and not generalized principles or assumptions about "family life", it will ultimately be able to deal with the changing and diverse nature of "family" in a way that the current regime cannot.  In this chapter I have discussed several ways in which the best interests provisions in Bill C-22 could be amended so that the Bill better incorporates an ethic of care. However, it is possible that ultimately such an approach may not provide a satisfactory solution to all of the problems I have identified. As discussed above, the assumption that ongoing contact with both parents is in the child's best interests, independent of the actual circumstances of the child's life, has become so ingrained in the best interests test that it may be impossible for it to be displaced. Thus, if an ethic of care is to be successfully incorporated into Canadian custody and access decision-making it may be necessary to abolish the best interests test. In the next chapter I will consider whether the best interests test has the capacity to incorporate the ethic of care within it and, if it does not, whether the test should remain part of Canadian law.  Selma Sevenhuijsen, Citizenship and the Ethics of Care: Feminist Considerations about Justice, Morality and Politics (London: Routledge, 1998) at 118.  102  Chapter V  5.0  Translating the Ethic of Care into Legislation  5.1  Introduction  As indicated in Chapter 4, while Bill C-22 could be amended so that it better incorporates an ethic of care, ultimately such an approach may not provide a satisfactory solution to all of the problems identified. The rhetoric of justice, rights and equality, and the pro-contact regime this rhetoric has produced, is so ingrained in the best interests test that it may 1  well be impossible for it to ever adequately incorporate an ethic of care. Thus, if family law is going to shift towards a care-based framework it may be necessary to fundamentally change the basis of custody and access decision-making. This would involve replacing the best interests of the child test with a new decision-making framework that derives from the ethic of care.  In this chapter I will first consider whether the best interests test has the capacity to incorporate the ethic of care within it and, if it does not, whether the test should remain part of Canadian law. I will then consider what might replace the best interests test, focusing on three proposals originating in the United States and Australia that emphasize existing relationships, the "social reality" of the individual family, and the actual activity of care. Drawing on these proposals, I will make some tentative recommendations about how an ethic of care might be incorporated into the Canadian legislative framework.  5.2  The "Best Interests" Test: Can it Incorporate an Ethic of Care?  The "best interests of the child" test has been widely touted as allowing a flexibility in decision-making that is appropriate and necessary in a family law context. Even when it is accompanied by guiding principles, such as those found in Bill C-22, it is usually  Dawn Bourque, "'Reconstructing' the Patriarchal Nuclear Family: Recent Developments in Child Custody and Access in Canada" (1995) 10 C.J.L.S. 1 at 6. 1  103  perceived as a malleable concept that permits the court to take into account the individual circumstances of each child's life. It is this very malleability, however, that causes concern.  From the outset, the best interests principle was criticized for being inherently indeterminate. As early as 1975 Robert Mnookin expressed the view that:  Deciding what is best for the child poses a question no less ultimate than the purposes and values of life itself [W]here is the judge to look for the set of values that should inform the choice of what is best?  In more recent years the best interests test has been charged with being an "empty category" which is filled with different meanings and policies at different times, makinj 3  it particularly vulnerable to political co-opting. As Smart explains:  Feminists have long noted that there is no fixed understanding of what the 'welfare' of the child means. Not only is it subject to changes in psychological orthodoxies, but it is a highly political concept in as much as certain meanings are taken up and used at different moments in quite specific political campaigns. [emphasis added] 4  Smart goes on to argue that despite the flexibility of the best interests or welfare test, in the current family law paradigm a very rigid meaning of the concept is discernable in its practical interpretation:  What parents seem to be finding (and once again I am being tentative here) is that as long as they agree with each other on everything they want to do, they can do what they like within the usual constraints of not actually harming the child. Thus parents can agree that the father will leave and will never see the children again (although they can no longer agree that he should pay them no maintenance). If they agree to this no one will object in practice that this is against the interests of the children. There is no mechanism to require fathers to see their children such as a financial levy or even financial inducement. However, if a mother feels she has reasons to try to restrict a father's contact with her children she will find it almost impossible to implement her wishes because the dominant orthodoxy is that there should be no such constraints after divorce - just as there were none before divorce. Because contact is, a priori, regarded as in the best interest of the For a discussion of the indeterminacy of the best interests principle see: Robert Mnookin, "Child-custody Adjudication: Judicial Functions in the Face of Indeterminacy" (1975) 39 Law & Contemp. Probs. 226 at 260. 1  Irene Thery, '"The Interest of the Child' and the Regulation of the Post-Divorce Family" in Carol Smart & Selma Sevenhuijsen, eds., Child Custody and the Politics of Gender (London: Routledge, 1989) 78 at 81-83. 3  Carol Smart, "Losing the Struggle for Another Voice: The Case of Family Law" (1995) 18 Dal. L.J. 173 at 183-84.  4  104  child, her wishes are seen as damaging and obstructive (although a father's wishes not to see his children are not). Thus the prevailing meaning of welfare is only enforced when parents disagree or to be more precise when mothers wish to restrict what fathers want. Thus the new orthodoxy is imposed on those who wish to restrict contact but not on fathers who wish to have no contact at all. In this way, the practice of the [Children Act] always constructs the mother as the potential problem or obstacle to the desired outcome of the welfare of the child. [footnotes omitted] 5  Arguably particular notions of "parenthood", "motherhood" and "family" are also embodied in the best interests principle. As Boyd argues, "what is viewed as 'best' all too often involves a normative and idealized image of parenting in the white, middle-class, nuclear, heterosexual family, rather than a concrete determination of a child's welfare."  6  Thus any parent, but particularly a mother, who diverges from this normative model of parenthood - whether by virtue of race, class, culture, sexuality, or disability 7  8  9  10  11  -  might be viewed negatively by the courts, regardless of her actual relationship with the child.  Given that the best interests test has come to encompass a rigid set of characteristics, the fact that Bill C-22 does not include a presumption in favour of shared parenting is somewhat irrelevant. The very malleability of the best interests test allows judges to  5  6  Ibid, at 184. Susan Boyd, Child Custody, Law, and Women's Work (Don Mills,  ON: Oxford University Press, 2003) at  13.  Dorothy Roberts, "Racism and Patriarchy in the Meaning of Motherhood" (1993) 1 Am. U . J. of Gender & the L. 1 at 8 ["Racism"]; Dorothy Roberts, Killing the Black Body: Race, Reproduction, of Liberty (New York: Pantheon Books, 1997); Marlee Kline, "Child Welfare Law, "Best Interests of the Child" Ideology, and First Nations" (1992) 30 Osgoode Hall L . J. 375. 7  and the Meaning  Boyd, supra note 6 at 13. Class in particular, often interacts with race and culture to produce a "motherhood" contrary to the dominant image of white, middle-class motherhood: Roberts, Racism, supra note 7. 8  Beryl Tsang, Child Custody and Access: The Experiences of Abuse Immigrant and Refugee Women (Ottawa: Education Wife Assault, 2001); Sherene Razack, Looking White People in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms (Toronto: University of Toronto Press, 1998) at ch. 3. Jenni Millbank, "Lesbians, Child Custody, and the Long, Lingering Gaze of the Law" in Susan Boyd, ed., Challenging the Public/Private Divide: Feminism, Law and Public Policy (Toronto: University of Toronto Press, 1997); Ruthann Robson, "Making Mothers: Lesbian Legal Theory and the Judicial Construction of Lesbian Mothers" (2000) 22 Women's Rights Law Reporter 15; Ruthann Robson, "Mother: The Legal Domestication of Lesbian Existence" in Martha Albertson Fineman & Isabel Karpin, eds., Mothers in Law: Feminist Theory and the Legal Regulation ofMotherhood (New York: Columbia University Press, 1995) 103. 9  1 0  Judith Mosoff, "A Jury Dressed in Medical White and Judicial Black: Mothers with Mental Health Histories in Child Welfare and Custody" in Susan Boyd, ed., Challenging the Public/Private Divide: Feminism, Law and Public Policy (Toronto: University of Toronto Press, 1997) 227. 1 1  105  incorporate such assumptions into the decision-making process. Smart and Neale suggest that this is exactly what has happened in the UK:  [T]he welfare principle is used to support equality, just as it once was used to support absolute father rights, and also to support the tender years doctrine and maternal preference. In pressing the welfare principle into use, we might underestimate the significance of the initial statement confirming equality/justice. But what we can see here is the discursive use of the welfare principle to keep alive the equality principle. In other words, the welfare principle assures equal rights for mothers and fathers. The strength of the principle now - somewhat ironically - lends more weight to the equality principle. But this in turn gives succour to a much more inflexible rights perspective which a number of fathers in our study expressed. This perspective demands equal  rights in the apparently certain knowledge that they alone secure the welfare of the child... This means that just when the Children Act welcomes the paramountcy of the welfare principle at the front door, by the back door it gives greater weight to an equality/justice/rights argument which may have little to do with the actual welfare of the specific child. [emphasis added] 12  Similar arguments have been made in the Canadian context by Susan Boyd  13  and Dawn  Bourque. For example, Bourque, who reviewed reported Canadian custody and access 14  cases from 1990 to 1993, found that: 15  Paternal access is viewed by judges as paramount in the "best interests of the child", eclipsing virtually all other factors. A child's supposed "need" for or "right" to a father, irrespective of the quality or quantity of his parenting, has superseded virtually all other considerations. [footnotes omitted] 16  Similarly, Boyd found that although Canada has never adopted a presumption in favour of joint custody, the philosophy behind joint custody - a notion that maximum contact is in the best interests of children - "nevertheless influences the broader trends in redefining 17  custody and access".  1 2  1 3  1 4  Carol Smart & Bren Neale, Family Fragments? (Cambridge: Polity Press, 1999) at 188. Boyd, supra note 6 at 132-37. Dawn Bourque, supra note 1.  With a few small exceptions Bourque examined all cases indexed under "custody and access" published in Reports of Family Law from 1990 to 1993. These included original custody orders, original access orders, variations to or enforcement of existing orders, interim orders, appeals and cases involving purely jurisdictional matters. In total there were 125 cases from which to draw information. Bourque, supra note 1 at 6. A similar trend of "enlarging access" was found by Susan Boyd in her analysis of Canadian custody and access decisions: Boyd, supra note 6 at 132-37; Susan Boyd, "Is There an Ideology of Motherhood in (Post)Modern Child Custody Law?" (1996) 5 Social and Legal Studies 495 at 502. 1 5  1 6  Boyd, supra note 6 at 133. Christine Davies has gone as far as to argue that the notion that maximum contact is in a child's best interests is effectively a presumption in Canadian family: Christine Davies, "Report of the Special Joint Committee on Custody and Access and the Concept of Shared Parenting" (2001) 19 Can. Fam. L . Q . 363. 1 7  106  Research also suggests that the presence of factors that diminish the benefits of contact, such as spousal abuse, has little effect on this pro-contact position. For example, in her 18  study on spousal abuse, children and the legal system in Canada, Neilson found that many family lawyers, who obviously have a significant influence on post-separation negotiations between spouses, consider abuse of partners of little importance in access decisions. Many of them felt that "bad spouses" do not necessarily make "bad parents" 19  and endorsed the need for children to have "regular access" with both parents: However incapable an abusive spouse may be at appreciating the needs and respecting the rights of his former spouse, he is still a parent; a child separated from a parent needs to see, feel and appreciate this half of who he or she is. The need of the child is overwhelming. Furthermore single parents are often 'swamped' by the daily needs and necessities of raising children. They can't do it alone and hope that the abuse will not continue with the kids. They know that they don't own the children and the children need to know the other parent. 20  Neilson also found that partner abuse seemed to have little effect on judges' decisions about access.  In fact, her analysis of reported cases and court files indicated that  Canadian courts award parents who abuse their partners access to their children most of the time. The severity of the abuse or violence alleged appeared to have little effect; 22  cases denying abusers access to their children did not differ markedly from cases awarding access. In justifying their views most judges and lawyers made a distinction between spousal abuse and child abuse, taking the view that only in cases of direct child abuse should there be any limitations on access.  This is despite research evidence  indicating that patterns of abusive behaviour often indicate poor parenting skill and ability, that between 30 and 50 per cent of men who physically abuse their partners will 24  Linda Neilson, "Partner Abuse, Children and Statutory Change: Cautionary Comments on Women's Access to Justice" (2000) 18 Windsor Y . B . Access Just. 115; Helen Rhoades, Reg Graycar & Margaret 1 8  Harrison, The Family Law Reform Act 1995: the First Three Years, (Sydney: University of Sydney and the Family Court of Australia, 2000) at 78-82. 19  Linda Neilson, Spousal Abuse, Children and the Legal System: Final Report for the Canadian Bar  Association, Law for the Futures Fund (Fredericton: Muriel McQueen Fergusson Centre for Family Violence Research, U N B , 2001) at note 148; Neilson, supra note 18. Female lawyer quoted in Neilson, supra note 19 at note 148. Neilson, supra note 19 at note 160. 2 0  2 1  Ibid. Similar findings were reported by Melanie Rosnes: Melanie Rosnes "The Invisibility of Male Violence in Canadian Child Custody and Access Decision-Making" (1997) 14 Can. J. Fam. L . 31. Neilson, supra note 19 at note 109. 2 2  2 3  2 4  Peter Jaffe, David Wolfe & Susan Wilson, Children of Battered Women (Newbury Park, C A : Sage,  1999); Marlies Sudermann & Peter Jaffe, A Handbookfor Health and Social Service Providers and  107  also physically abuse their children, and that the rates of child abuse increase with the severity andfrequencyof the pattern of partner abuse.  25  In light of the research discussed above, it seems that there is a judicial trend in Canada towards a presumption that contact is in a child's "best interests", despite the absence of any legislative rule to that effect. Furthermore, this presumption appears to apply even when the parent being given contact has a history of abuse. Given these findings, I have grave doubts about the ability of the best interests test to take into account the "principle of actuality", to assess the quality of the child's relationships with each of his or her parents, or to recognize the importance of the activity of care. The debates that culminated in Bill C-22 and the criteria that, if the Bill is enacted, would be part of the best interests test - in particular, the requirement that the court consider "the benefit to the child of developing and maintaining meaningful relationships with each spouse" 26  suggest that the best interests principle will continue to be interpreted in a pro-contact manner. This will make it very difficult for courts to base their decision-making on the specific circumstances of each child's life, or to adequately deal with family violence or abuse.  While the criteria in s. 16.2(2) are designed to be "guiding principles", with no priority given to one over the other, there is a risk that they will solidify into rules which are then applied rigidly regardless of the specific circumstances. As Smart and Neale warn in relation to the English context:  [A] guiding principle which states that it is in the interest of children to maintain contact with both parents yet ends with imprisoning a residential mother who has been the victim of sustained violence for failure to comply with a court order for contact seems to have gone seriously awry. Equally, a guiding principle which states that contact is the right of a child but which then imposes a contact order on an unwilling child in the long run, seems to want to have its cake and eat it. If contact is the right of the child, so is no contact. If the child chooses to exercise his/her rights, it is  Educators on Children Exposed to Woman Abuse/Family Violence (Ottawa: Health Canada, National Clearinghouse on Family Violence, 2000). Ibid; M Pagelow, "Effects of Domestic Violence on Children and their Consequences for Custody and Visitation Agreements" (1994) 7 Mediation Quarterly 347. 2 5  Bill C-22, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and to amend other Acts 2 6  in consequence, 37 Pari., 2002, s. 16.2(2)(b) ["Bill C-22"]. th  108  an abuse of the court's power to insist that they can only be exercised in one direction because the court actually knows what is best already. Treated this way, the notion that contact is the right of the child does not empower the child but only the court in the pursuit of an ideal about the benefits of contact. While we acknowledge that these new principles were introduced in order to right certain wrongs, and while we would also not dissent that in principle it is better if children do not lose contact with parents, and that children should have a voice, our difficulty with the current legal practice is that, in finding a 'good enough' principle, it then applies it with the sensitivity of a sledgehammer. .. .They [the courts] work to an abstract principle, rather than workingfromthe complexities of real family relationships. [emphasis in original] 27  Arguably the application of the proposed best interests test in Canada's Bill C-22 has exactly the flaw Smart and Neale identify: it places a loosely defined principle, vulnerable to political co-opting, above an analysis of the actual circumstances of each child's life. The fact that the best interests criteria in Bill C-22 are not prioritized in any way also means that criteria relating to family violence and pre-separation caregiving must be weighed up against provisions that promote contact and parental co-operation. Such an approach is in fundamental opposition to an ethic of care because it forces the courts to balance concrete issues of care and safety with universalized principles about what is in the "best interests" of all children.  The discussion above raises the question of whether the best interests principle should be 28  abandoned.  The answer to this question hinges on whether it is possible for the ethic of  care and, in particular the principle of actuality, to be read into the best interests test. And, if they were able to be read into the test, would they be given sufficient weight that they might overcome the current trend towards universal assumptions about what is in the best interests of children?  1  Smart & Neale, supra note 12 at 189-90.  Commentators have been discussing abandoning or diminishing the best interests principle for some time. For literature on the issue see: John Eekelaar, "Beyond the Welfare Principle" (2002) 14 Child and Family Law Quarterly 237; Helen Reece, "The Paramountcy Principle: Consensus or Construct?" (1996) Current Legal Problems 267; John Herring, "The Welfare Principle and Parents' Rights" in Andrew Bainham, Shelley Day Sclater & Martin Richards, eds., What is a Parent? A Socio-Legal Analysis (Oxford: Hart Publishing, 1999); Joseph Goldstein, Anna Freud & Albert Solnit, Beyond the Best Interests of the Child (New York: Free Press, 1979) at 54. 2 8  109  It is unlikely that the ethic of care could successfully be read into the best interests test. As discussed earlier, family law today is dominated by the language of justice, rights 29  and equality. While care is not entirely absent from the debate, it is marginalized by justice rhetoric. Furthermore, when arguments about care are made they tend to revolve around "caring about" rather than the actual activity of caring. Given the dominance of 30  the ethic of justice in best interests decision-making, and the ongoing assertions by fathers' rights groups that this should remain the case, it is difficult to know how proponents of an ethic of care could successfully transform the test. Put simply, the ethic of care provides a fundamentally different moral perspective on the issue of custody and access. Trying to integrate it into a principle that, in recent years, has come to be dominated by a justice-based morality is untenable. In light of this fact, it may be necessary to abandon the best interests test.  If the best interests test were to be abandoned, it would obviously need to be replaced with something else. It is my proposal that the test be replaced with a "principle of care" that would include Gilligan's three fundamental components: (a) that the child be placed in a set of relationships and the quality of those relationships be evaluated; (b) that decision-making about the child be based on the actual circumstances of the child's life; and (c) that the court prioritize the activity of care. This is essentially the approach taken by Smart and Neale, who propose that the principle of care would lean toward maintaining contact with all family members where possible, "but not at the cost of coercion".  31  While Smart and Neale have given some thought to what the principle of care might encompass, they do not discuss how it might operate in practice. In the next section I will consider how the principle of care might be developed legislatively, drawing on the "approximation principle", first suggested by Elizabeth Scott  2 9  and now incorporated into  See pp. 70-78, above.  Though as discussed earlier, Smart suggests that "caring for" does feature in custody and access disputes but that it is only when articulated by fathers that it appears to carry any weight with judges: Smart, supra note 4 at 178. Smart & Neale, supra note 12 at 193. 3 0  3 1  3 2  Elizabeth Scott, "Pluralism, Parental Preference, and Child Custody" (1992) 80 Cal. L . Rev. 615.  110  the American Law Institute's Principles Principles"],  the  of the Law ofFamily Dissolution ["the ALI  "status quo" principle discussed by Australian academic Helen  Rhoades, arid the "principles and presumptions" model introduced by another 34  Australian academic, Juliet Behrens.  5.3  35  Replacing the "Best Interests" Test: The Principle of Care in a Legislative Form  Translating the principle of care into legislative language is an enormous challenge, not least because it is a broad-based concept that does not lend itself to the kind of structure that is required by legislation. In putting the principle into a legislative form drafters must chart a fine line between discretion and rules. While the ethic of care narrows decision36  making by directing judges to focus on certain principles, the principle of actuality and its emphasis on the individual circumstances of each family introduces a certain degree of discretion and indeterminacy. It thus appears that family law legislation based on the ' ethic of care might need to incorporate a combination of rules and discretion.  37  " American Law Institute, Principles of the Law ofFamily Dissolution: Analysis and Recommendations (Philadelphia: Executive Office, American Law Institute, 1997) ["ALI Principles"]. Susan Boyd, Helen Rhoades & Kate Burns, "The Politics of the Primary Caregiver Assumption: A Conversation" (1999) 13 Austl. J. Fam. L 233 at 250-51. 3 4  Juliet Behrens, "The Form and Substance of Australian Legislation on Parenting Orders: a Case for the Principles of Care and Diversity and Presumptions Based on Them" (2002) 24 J. Soc. Welfare & Fam. L . 401. 3 5  The debate about discretion versus rules is an ongoing one in family law and other areas of the law. For a discussion of the issue see: Cass Sunstein, Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996); John Dewar, "Reducing Discretion in Family Law" (1997) 11 Austl. J. Fam. L . 309; John Dewar, "The Normal Chaos of Family Law" (1998) 61 Mod. L . Rev. 467; Peter Drahos & Stephen Parker, "The Indeterminacy Paradox in Law" (1991) U . W . A . L . Rev. 305; Peter Drahos & Stephen. Parker, "Rule Scepticism and Indeterminacy in Law: A Conventional Account" (1992) Ratio Juris 109. The debate has extended into property as well as child custody and access law. See, eg, Richard Ingleby, "Australian Matrimonial Property Law: The Rise and Fall of Discretion" in M P Ellinghaus, Adrian Bradbrook & A J Duggan, The Emergence ofAustralian Law (Melbourne: Melbourne University Press, 1993). Evidence of the shift towards rules and away from discretion is exemplified in Canadian family law by the introduction of child support guidelines, and the prospect of spousal support guidelines. For a discussion of the pros and cons of proposed spousal support guidelines in Canada see: Carol Rogerson, Spousal Support Post-Bracklow: The Pendulum Swings Again?" (2002) 19 C . F . L . Q . 185; Marie Gordon, "Spousal Support Guidelines and the American Experience: Moving Beyond Discretion" (2002) 19 Can. J. Fam. L. 247. 3 6  This is the model proposed by Juliet Behrens who argues that introducing an ethic of care into family law might require a combination of both principle and presumptions, whereby the presumptions ensure that the ideology and conversations surrounding the decision-making remain consistent with the principle (in this case, the ethic of care): Behrens, supra note 35 at 409-10. 3 7  Ill  In my review of both Canadian and international family law literature, I have found three examples of an explicit attempt to incorporate an ethic of care into family law •30  legislation. These legislative models - the "approximation principle", the "status quo principle", and a "principle and presumption" based system - give some indication of how legislation guided by the ethic of care might look. Drawing on these models, in the next section I will consider how the ethic of care might be translated into a legislative form. 5.3.1  The "Approximation" Principle  The "approximation principle" as an alternative to the best interests test was first proposed in the early 1990's by American legal academic Elizabeth Scott. Scott's view 39  was that the available array of custody and access rules - the primary caregiver presumption, joint custody, and the best interests of the child - were unsatisfactory, 40  41  42  because each created a presumption in favour of a particular family form that was inappropriate given the increasing pluralism of American families. A legal preference in 43  favour of the primary caregiver discounts the role of the "secondary parent" and 44  Another possible model through which to introduce the ethic of care into custody and access decisionmaking is the "Mother/Child dyad" as developed by Martha Fineman: Martha Albertson Fineman, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies (New York: Routledge, 1995) at 226. Fineman argues that we should abolish marriage as a legal category, and replace it with legal support and protection for the nurturing unit of caretaker and inevitable dependent, exemplified by the "Mother/Child dyad". Thus the sexual family would be replaced with the "caregiving family" which would be a protected space, entitled to special, preferred treatment by the state. This preferential treatment would be delivered through a newly reformed social welfare system that would be revisioned so as to support caregiving as the "family intimacy norm". For example, Fineman envisions a redistribution of social and economic subsidies from the sexual family, to the mother/child caregiving unit. While Fineman's proposal resonates with the ethic of care, I have decided not to include it within the discussion below because it necessarily involves a complete revisioning of the social order (as well as family law) that is beyond the parameters of this thesis. Her proposal is also intended to apply beyond the limited jurisdiction of child custody and access law. I obviously do not have the time or space to consider the implications of such a large scale shift in our understanding of the family or society. Scott, supra note 32 at 630. 3 8  3 9  40 41 42  43  Ibid, at 626-30. Ibid, at 624-26. Ibid, at 621-23.  Ibid, at 617.  Though Scott does not actually deal with this problem, joint custody also fails to address the issue of multiple parents, such as when two lesbian mothers make an agreement with a sperm donor to co-parent a 4 4  112  reinforces traditional gender and parenting roles. Joint custody accurately describes parental role allocation only when both parents fully participated in child care during marriage. And the best interests standard can obscure or dilute the importance of pre45  divorce caregiving (and its gendered nature) because it requires the balancing of many factors, of which caregiving is only one.  46  The problems associated with each of the available tests for custody and access decisionmaking led Scott to propose a new rule - the "approximation principle". The approximation principle is based on the premise that the optimal legal framework for custody and access decision-making is one that "focuses (almost) exclusively on the past relationships between parents and child and seeks to approximate as closely as possible the pre-divorce patterns of parental responsibility in the custody arrangements." Such 47  an approach avoids many of the problems associated with the primary caregiver presumption, the best interests principle, and joint custody. As Scott explains:  [T]he approximation principle will demand a narrow, more quantitative inquiry into the child's life than [the other rules]. The approximation inquiry, like the primary caretaker preference, focuses on the amount of time spent with the child, the extent to which the parent engaged in tasks that contributed to the child's basic care and development, and the parent's participation in decisions relevant to the child. Unlike the primary caretaker preference, however, this evidence does not serve as a basis for choosing one parent over the other but rather for allocating time and decisional authority between the parents, who presumably will continue in their parental roles. 48  Scott further explains:  [The approximation principle] does not choose between parents or split custody of the child but rather seeks to gauge the strength of existing bonds and to perpetuate them through the custody arrangement. Thus, for example, if both parents have been active caretakers, the child should not have to suffer from the disruptive effects of relegating one parent's status to that of visitor. On the other hand, if one parent's involvement and care for the child has been dominant, that strong bond  child, or in situations where cultural practices allow for children to be raised by multiple biological and non-biological parents. Interestingly, even when joint custody is awarded most children live primarily with their mothers, and many couples "drift" back towards arrangements that reflect their pre-divorce patterns of care: Robert Mnookin, "Private Ordering Revisited: What Custodial Arrangements Are Parents Negotiating?" in Stephen Sugarman & Herma Hill Keys, eds., Divorce Reform at the Crossroads (New Haven: Yale University Press, 1990) 37 at 67. 4 5  4 6  4 7  4 8  And, as indicated in earlier discussions, an increasingly maligned factor. Scott, supra note 32 at 630. Ibid, at 637-38.  113  should not be disturbed. The secondary role of the other parent, however, should also be recognized. 49  Scott also argues that the approximation principle would promote continuity and stability for children, encourage cooperative rather than conflictual resolution of custody thereby ameliorating the destructive effects of bargaining at divorce, and recognize and 50  reinforce role change in individual families. In Scott's view, the approximation 51  principle fulfills better than other frameworks the "rhetorical promise" that custody is about children's welfare rather than parents' rights.  52  The approximation principle has been developed further by American academics, particularly Katharine Bartlett,  and was incorporated in 1998 into the American Law  Institute's Principles of the Law of Family Dissolution. * In her discussion of the 5  principle, Bartlett has argued that it should serve as the default position for custody and access decision-making, with several provisos. Like Scott, Bartlett was of the opinion 55  that the principle overcame many of the problems associated with the other tests available, and also resolved some of the ongoing tensions in family law, such as those  49  Ibid, at 632.  Scott believes that because the approximation principle requires that the parties replicate pre-separation parenting patterns there will be less conflict between parents. She bases her argument on several factors (1) it avoids arguments about what is "best" for the child, and just focuses on what parents have done in the past; (2) pre-divorce roles may reflect the "true" preferences of parents for their future relationship with their child, and are thus more likely to predict future commitment that any alternative; (3) parents will be more resistant to radically altering their parenting patterns than to replicating them. Scott, supra note 32 at 615. Ibid, at 642-43. 5 0  5 1  5 2  Katharine Bartlett, "Improving the Law Relating to Postdivorce Arrangements for Children" in Ross Thompson & Paul Amato, eds., The Postdivorce Family: Children, Parenting and Society (Thousand Oaks, C A : S A G E , 1999)71. 5 3  ALI Principles, supra note 33. Thus far, Ch. 2 of the A L I Principles has only been adopted by the West Virginia state legislature: W. V A . C O D E §§ 48-11-101-604 (Supp. 2000). However, the Chief Reporter for the ALI Principles project has suggested that Chapter 2 (which is the chapter dealing with custody and access) may soon be adopted more widely: see, Margaret Brinig, "Feminism and Child Custody Under Chapter Two of the American Law Institute's Principles of the Law of Family Dissolution" (2001) 8 Duke J. Gender L. & Pol'y 301 at note 3. 5 4  Bartlett's provisos were: (a) that a guaranteed minimum amount of postdivorce access by parents who have acted as responsible parents, even when they have not spent a significant amount of time providing caretaking functions for their children; (b) that the "firm and reasonable preferences" of older children be taken into account; and (c) that the child's welfare be protected when there has been domestic abuse or when there is a gross disparity between the parents in terms of the quality of emotional attachments with their children or their parental abilities that does not conform to past caretaking patterns. Bartlett, supra note 53 at 83. 5 5  114  between finality and flexibility, and determinacy and individualized decision-making.  56  Under Bartlett's proposal the approximation principle would not completely abolish the best interests test, rather best interests would only be relevant where past caregiving patterns were not determinative or where replicating them would be impractical.  57  Bartlett's views were strongly endorsed in the ALI Principles, not surprisingly given that Bartlett was the primary Reporter for the chapter of the Principles dealing with child custody and access law.  In the ALI Principles the approximation principle is set as a "default rule" for custody and access decision-making when the parents do not otherwise agree. The reasoning 58  behind adoption of the principle is explained: [By] focusing on how the child was cared for previously, the past caretaking rule anchors the determination of the child's best interests not in generalizations about what post-divorce arrangements work best for children, but in the individual history of each family. How caretaking was divided in the past provides a relatively concrete point of reference which is likely to reflect various qualitative factors that are otherwise very hard to measure, including the strength of the emotional ties between the child and each parent, relative parental competencies, and the willingness of each parent to put the child's interests first. At the same time, it reduces the need for predictions about the future, and thus the expenses and uncertainty produced by expert witnesses and psychological studies.... Operationally, the approximation rule means that allocations of custodial responsibility, when not otherwise agreed to by the parents, should reflect the roles each parent assumed prior to their separation. This does not mean that caretaking arrangements are expected to remain the same after the divorce. What it means is that a parent who has been the primary caretaker of the child should remain so, and that parents who had co-equal roles before their separation should also retain those roles afterwards, if possible. The options are not limited to any particular standard arrangement,  but cover the entire spectrum ofpossibilities. The Principles of Chapter 2 resist the tendency to identify some particular arrangement that works best in the greatest number of cases. They assume, instead, that if the parents do not agree about post-separation arrangements for their child, the arrangements they previously followed are the best guide for the future. [emphasis added] 59  Under the ALI Principles the approximation principle is divided into two components: "caretaking functions" and "parental functions". Paragraph 2.06 lists which functions are "caretaking functions", and these will operate to determine for which portion of time each  For a discussion of these tensions see ibid, at 72-82. 57  Ibid, at 88.  5 8  ALI Principles, supra note 33 at § 2.08(1).  ALI Principles, quoted in American Law Institute, "Principles of the Law of Family Dissolution: Analysis and Recommendations (2001) 8 Duke J. Gender L . & Pol'y 1 at 7-8. 5 9  115  parent should have residential responsibility for the child. On the other hand, the 60  performance of functions that qualify as "parenting functions" will justify maintaining a relationship with the child but not a large portion of residential placement.  61  While the ALI Principles seek to replicate pre-separation caregiving patterns, decisionmaking authority is dealt with in a different manner. Recognition as a parent does not necessarily entail an allocation of decision-making responsibility, but § 2.09(2) of the Principles establishes a presumption in favor of joint decision-making responsibility if both parents have been exercising a "reasonable" share of parenting functions.  62  A number of sections in the ALI Principles qualify the approximation principle. First, unless circumstances exist warranting access limitations under § 2.11, each parent 63  should be allocated an amount of custodial responsibility that will enable the parent to maintain a relationship with the child, even if this level of responsibility is not supported by the parent's past level of involvement in the child's care. Second, the court should 64  accommodate the preferences of an older child who has firm and reasonable preferences. Third, the court should attempt to keep siblings together if it determines 65  that doing so is necessary to their welfare. Fourth, the court should depart from past 66  caregiving arrangements to take account of a gross disparity in the quality of the emotional attachments between the child and each parent, or in the ability or availability  They include the tasks of: (a) meeting the "daily physical needs of the child"; (b) direction of child's developmental needs; (c) discipline and other tasks attending to the child's needs for behavioral control and self restraint; (d) arrangement of the child's education; (e) development and maintenance of appropriate interpersonal relationships; (f) arrangement of health care; (g) moral guidance; and (h) arrangement and supervision of alternative child care: ALI Principles, supra note 33 at § 2.06. b U  "Parenting functions" include: (a) provision of economic support; (b) participation in decision-making regarding the child's welfare; (c) maintenance or improvement of the family residence, home or furniture repair, home improvement projects, car repair and maintenance, yard work, and house cleaning; (d) financial planning and organization, food and clothing purchasing, cleaning and maintenance of clothing, and other tasks supporting the consumption and savings needs of the family: ibid, at § 2.03(7). Ibid, at §2.09(2). 6 1  6 2  Paragraph 2.11 imposes limitations where risk factors exist, such as a parent's drug or alcohol abuse, or interference with the other parent's lawful access to the child: ibid, at § 2.11. Ibid, at § 2 . 0 8 ( l ) ( a ) . /6W.at§2.08(l)(b). Ibid, at § 2 . 0 8 ( l ) ( c ) .  6 3  M  6 5  6 6  116  of each parent. Fifth, prior agreements between the parents should be taken into account 67  if the court determines that doing so would be appropriate in the circumstances, including the expectations of the parties and the extent to which the circumstances match what the 68  parties anticipated.  Sixth, courts should take account of logistical and relevant factors  that make an otherwise appropriate equal allocation of custodial time impractical or harmful to the child's stability. Finally, a catch-all exception requires departure from 69  past caretaking arrangements to avoid substantial and almost certain harm to the child.  70  Also of significance is § 2.13, which poses substantial obstacles for a parent seeking to obtain custodial responsibility where domestic violence has occurred. Under § 2.13 the court may impose limits on access that are "reasonably calculated to protect the child or 71  child's parent from harm".  It should also be noted that under the ALI Principles the  adoption of the approximation principle does not eliminate the focus on the best interests of the child. Where past caretaking patterns are too complex or unstable to provide a guide to decision-making, the best interests test comes back into play.  72  It is clear from the discussion above that the approximation principle, particularly as outlined in the ALI Principles, bears a strong resemblance to the ethic of care. The 73  approximation principle emphasizes the importance of the actual activity of care, it relies on the concrete circumstances of each child's life in order to make decisions about postseparation caregiving, and it focuses on the importance of relationships and evaluates the actual relationships that exist between the child and his or her parents. The only element of the ethic of care that the approximation principle might not emphasize sufficiently is the importance of listening to children. Under the ALI Principles, it is only "older  Ibid, at § 2 . 0 8 ( l ) ( d ) . This qualification applies only when, notwithstanding past caretaking roles, a disparity in the quality of the parents' emotional bonds with the child or in the ability or availability of the parents is so severe that it would harm the child and thus clearly demands a different result than the past caretaking standard alone would produce. Are?.at§2.08(l)(e). S8  6 9  7 0  A / J . at §2.08(1 )(f). Ibid, at § 2 . 0 8 ( l ) ( h ) .  Ibid, at §2.13(2). In addition to § 2 . 1 3 , §§ 2.05(3) & 2.06(2) state that the court is required to have a process for screening for child and domestic abuse, and court review of parental agreements submitted in such cases is mandatory. Paragraph 2.07(3) prohibits courts from requiring parents to participate in face-toface meetings or to engage in mandatory mediation. Ibid, at § 2.08(3). As explained in Ch. 3, pp. 40-46, above. 7 1  7 2  7 3  117  children" who have "firm and reasonable preferences" who are accorded a voice, and then only as a qualification to the approximation principle. This would conflict with an ethic of care which demands that children are listened to as part of the process of determining the circumstances of their lives.  The ALI Principles also appear to include a "minimum contact" provision that applies independently of any actual relationship between the child and parent. Section 2.02(1 )(a) of the Principle states that unless the parent is unfit to care for the child, each parent 74  should be allocated an amount of custodial responsibility that will enable the parent to maintain a relationship with the child, even if this level of responsibility is not supported by the parent's past level of involvement in the child's care. This provision seems to 75  suggest that a "no contact" order is not an option under the ALI Principles, except in a few narrow circumstances. Such an approach comes close to an assumption that at least some contact is in the child's best interests, even if there is no pre-existing relationship. It also has the potential to diminish the importance of identifying harmful relationships.  The presumption in favour of shared decision-making authority if both parents have been exercising a "reasonable" share of parenting functions is problematic. Research 76  suggests that shared decision-making can be used by some non-resident parents to continue to exercise control over their former-partner. For example, in her study on the Washington State Parenting Act in 1999 (which includes a presumption in favour of joint decision-making) Diane Lye found that a substantial minority of primary residential parents (usually mothers) reported that their ex-spouses had used the provision to harass or psychologically abuse them. Similarly in the Australian context Rhoades, Harrison 77  and Graycar, found that ongoing parental responsibility had become a "new tool of control" for non-resident parents.  7 4  7 5  7 6  For example, if the parent abuses drugs or alcohol. ALI Principles, supra note 33 at § 2 . 0 8 ( l ) ( a ) . Ibid, at §2.09(2).  Diane Lye, Washington State Parenting Act Study, Report to the Washington State Gender and Justice Commission and Domestic Relations Commission, June 1999 (available at: http://www.courts.wa.gov/newsmfo/new Rhoades, Harrison & Graycar, supra note 18 at 2. 7 7  7 8  118  Finally, the approximation principle ignores the fact that replicating pre-separation caregiving patterns, particularly when there has been a roughly equal sharing of responsibility, requires a high degree of flexibility and co-operation that may not be appropriate, or even possible, post-separation. As Smart and Neale explain:  What works during marriage or cohabitation may be quite inappropriate after separation.. .Predivorce parenting may be a poor preparation for post-divorce parenting, and the skills, qualities and infrastructural supports required for the former may be rather different to those required for the latter. 79  For example, in some cases replicating pre-separation caregiving arrangements may impose a significant financial burden on parents because of the need to provide the child with two "complete" homes. Replicating pre-separation arrangements that were roughly equal is also premised on the two parents living near one another and having access to transportation. Similarly, in cases where there is high conflict or violence between parents, it may simply be inappropriate or dangerous to replicate earlier caregiving patterns. Thus, if the approximation principle were to be endorsed it would be necessary that it incorporate a degree of flexibility so that it does not become an absolute presumption, independent of the individual circumstances of each family.  While there are some flaws in the individual provisions of the ALI Principles, the purpose of this discussion is not to analyze every element of the Principles, but to consider how an ethic of care might be incorporated into a legislative framework. The approximation rule as outlined in the ALI Principles provides a good example of what custody and access decision-making might look like if it were to be premised on an ethic of care. The approximation principle holds a great deal of promise for those seeking to incorporate an ethic of care into child custody and access decision-making. The principle's clear focus on pre-existing relationships and the activity of care ground it securely within the ethic's framework. In addition, because it requires an investigation into the individualized circumstances of each family's life it satisfies the requirements of the principle of actuality. Thus the introduction of the approximation principle in a  Smart & Neale, supra note 12 at 45-46.  119  legislative form similar to that outlined in the ALI Principles might be one way in which the ethic of care could be incorporated into Canadian family law.  5.3.2  The  "Status Quo  Principle"  A proposal similar to the approximation principle has been developed by Helen Rhoades in the Australian context. Rhoades has suggested that custody and access decision80  making could be based on the "status quo" principle, which focuses on the family's "social reality", including the pre-existing caregiving arrangements for the child, the quality of the relationships between the child and his or her parents, and the effects of any domestic violence.  Like the approximation principle, the status quo principle would  necessarily take into account the activity of care, the principle of actuality, and the relational circumstances of children's lives. In determining the family's "social reality", it would also be necessary to listen to the views of the children involved.  The status quo principle already operates in Australian family law at the interim hearing, stage where there is a general rule that pre-separation caregiving patterns be maintained until a final hearing. Maintenance of the status quo is premised on the need to promote stability and continuity in children's lives. It is presumed that stability will be achieved by "continuing the existing caregiving arrangements unless there are 'strong or overriding indications to the contrary', such as evidence that the children would be harmed unless the arrangements are varied."  Thus, as Rhoades argues, unlike the  primary caregiver presumption, such an approach is ultimately child- rather than adultfocused:  [T]he court's gaze would be directed at the children's lives - their daily activities and weekly routine - instead of evaluating the performances of their parents. 83  Such an approach is likely to satisfy many of the elements of the ethic of care, though it is possible that the strong presumption in favour of contact in Australian family law may  8 0  Boyd, Rhoades & Burns, supra note 34 at 250-51.  Ibid, at 250. Ibid. at 251.  81 i2  120  override the status quo principle. In fact, Rhoades, Graycar and Harrison found that in 84  practice, the presumption in favour of contact, particularly at the interim stage, seemed to take precedent over the status quo principle, even in cases of abuse. It might also be the 85  case that the language of "caring about", particularly when invoked by fathers, carries more weight than the "caring for" emphasized by the status quo principle.  While generally endorsing the status quo principle, Rhoades does express some reservations. She argues that despite its individualized focus, it still prescribes a "static" model of pre- and post-separation family.  Like the primary caregiver presumption or a  presumption in favour of shared parenting, the status quo principle presumes that a certain post-divorce model is the best one, in this case, a model based on previous 87  caregiving arrangements.  In Rhoades' view, this "static" model of justice (that pervades  most current models of family law decision-making) must be replaced by a more "dynamic" conception of justice that is capable of recognizing and catering for a diverse range of family arrangements and relationships.  She does not speculate as to what such  a model might look like, but states that "existing caregiving arrangements" would remain an important consideration. 5.3.3  The "Principles and Presumptions" Model  The final, and most promising, model to consider is that proposed by Australian legal academic Juliet Behrens, which incorporates an ethic of care into family law decisionmaking through a system of "principles and presumptions". Critiquing Smart and 89  Neale's view that custody and access decision-making should avoid presumptions about  8 4  8 5  86  Rhoades, Harrison & Graycar, supra note 18 at 75-80. Boyd, Rhoades & Burns, supra note 34.  Ibid.  Ibid. As discussed earlier, focusing on physical caregiving patterns also has the potential to impose a white, middle-class, able-bodied, and heterosexual model of caregiving on all families. Similar criticisms have been made about the primary caregiver assumption. See, eg, Mosoff, supra note 11; Marlee Kline, "Complicating the Ideology of Motherhood: Child Welfare and First Nations Women" (1993) 18 Queen's L. J. 306 8 7  Boyd, Rhoades & Burns, supra note 34 at 251. In making this assertion, Rhoades draws on: Agnes Heller & Ferenc Feher, The Postmodern Political Condition (Cambridge: Polity Press, 1988) at 123. Behrens, supra note 35. 8 8  8 9  121  children by focusing on individualized decision-making as demanded by the principle of care, Behrens argues that custody and access legislation should include a combination 90  of both principles and presumptions, with principles stating the broad value (for example, the ethic of care), and presumptions indicating some of the (value-based) outcomes.  91  Behrens explains her reasoning as follows: [I]n my view we need more than just principles. I argue this for four reasons. First the principles as I envisage them would be very general and some of the value choices which need to be made in this area can only be made through more precise, outcome-oriented provisions. Second, principles only avoid making very general value-based decisions in each case. They do not carry with them the efficiency benefits of making some of the outcome decisions in advance. Third, the importance of ideology, and the strength of ideology irrespective of form, mean that outcomes need to be specified so as to influence the ideology and conversations consistently with the principle. Fourth...a major role for legislation is to work towards addressing power imbalances that will affect private negotiations. Legislation is more likely to do this if it is reasonably specific about the source of those power imbalances. 92  Behrens proposes incorporating the ethic of care into Australian family law at the level of principle, while simultaneously introducing rebuttable presumptions that qualify the discretion and flexibility inherent in a principle-based system. In practice this might 93  involve replacing the best interests principle in family law legislation with the three elements of an ethic of care - relationships, the principle of actuality, and the activity of care - and directing judges to consider these elements, giving equal weight to each, when making custody and access decisions. For example, legislation might state:  When making custody and access decisions the court shall consider: (a) the importance of maintaining relationships between children and their carers when it is safe and positive to do so; (b) the individual circumstances of the child's life and their family arrangements; and (c) the history of caregiving for the child, including the physical, emotional and social tasks of parenting.  9 1  9 2  91  Smart & Neale, supra note 12 at 192-93. Behrens, supra note 35. Ibid, at 409-10.  Ibid, at 413.  122  It might be of assistance to also include a Preamble in the legislation similar to the one discussed in Chapter 4 .  9 4  Legislation based on Behrens' model would also include a  series of presumptions. For example, Behrens suggests the inclusion of the following presumptions: (a) that a court cannot make an order in favour of a parent who has engaged in violence directed towards the other parent or child; (b) that where there has been a primary caregiver, the child will live with that caregiver; and (c) that a court will not interfere with a decision made by a primary caregiver concerning the children (including a decision to relocate). Each of these would be rebuttable presumptions, and 95  the principle of care would provide a basis from which to assess whether to not the assumption should be rebutted. Thus, under Behrens' model there would be no way in which a particular ideology - such as the view that contact is in a child's best interests even when there is abuse - could creep into custody and access decision-making.  The combined "principles and presumptions" approach should still be able to maintain the ideal of individualized decision-making as proposed by Smart and Neale, while also addressing the inherent indeterminacy of such a system  9 6  Behrens' model is also the only  one that explicitly aims to redress power imbalances within family law, such as those between mothers and fathers. By including rebuttable presumptions that will often force the stronger party to justify his or her claim, it seeks to address some of the historic inequalities between men and women, particularly those that stem from the use of violence as a means of control. Such an approach might ultimately be the best way in which to incorporate an ethic of care into custody and access decision-making.  5.4  Conclusion  While there is little political will to reform or abolish the best interests principle, it is clear from the discussions above that a growing number of critics are suggesting that the  See discussion of Preamble, at p. 100, above. Behrens, supra note 35 at 413.  Ibid, at 409-10.  123  ethic of care must play a greater role in family law decision-making. The approximation 97  principle, the status quo principle, and the "principles and presumptions" model all offer realistic alternatives to the best interests test. Each of the models places care at the centre of custody and access decision-making, and avoids the current propensity to place assumptions about children's needs above the actual circumstances of the child in question. Unlike the approximation and status quo principle, however, the "principles and presumptions" model also addresses the complex question of whether an entirely discretion-based system of decision-making is desirable. Behrens suggests that while an ethic of care can be incorporated into family law decision-making at the level of principle, certain outcomes need to be specified in order to ensure that the ideology and conversations surrounding the decision-making remains consistent with the principle.  98  While each of the models takes a different approach, they all give some indication of how the ethic of care might actually be incorporated into family law legislation. Whatever form it ultimately takes, the ethic of care offers a realistic alternative to the current legislative framework and should replace the best interests principle as the paramount test for determining child custody and access issues. In reality however, it is unlikely that there is sufficient political will to abolish the best interests test or to introduce an ethic of care into family law any time soon. It may therefore be necessary at this stage to continue to seek reform through amendments to the best interests criteria, as suggested in Chapter 4.  99  However, in the next chapter I will consider the arguments made by other  commentators who have proposed replacing the best interests principle, and how they have sought to overcome the barriers to abolition.  Smart & Neale, supra note 12; Boyd, Rhoades & Burns, supra note 34; Bartlett, supra note 53 at 71-102;  Selma Sevenhuijsen, Citizenship and the Ethics of Care: Feminist Considerations on Justice, Morality and Politics (London: Routledge, 1998). Behrens, supra note 35 at 409-10. See discussion in ch. 4 at pp. 87-100, above. 9 8  9 9  124  Chapter VI  6.0  Conclusion: The Ethic of Care and Future Canadian Law Reform  6.1  Introduction  In this thesis I have critically analyzed society's changing perceptions of "the child" and his or her "best interests", and the impact that these changes have had on child custody and access law in Canada. Over the past two decades there has been a dramatic ideological and normative shift in the way in which "the child" is conceptualized. Most notably, children have gone from being understood as vulnerable and in need of protection, to being perceived as autonomous, rights-bearing individuals. Related to this shift towards conceptualizing the child through a rights framework has been a change in what we consider to be in a child's "best interests". Increasingly, it is assumed that children's interests are best met by maintaining ongoing contact with both parents following separation or divorce. However, because most children live with their mothers after divorce, this presumption has evolved into the right of the child to have contact with his or her father. It has been my argument throughout this thesis that such an approach, and the particular conceptualization of the child upon which it is based, is flawed because it fails to take into account the individual circumstances of each child's life. Given the problems associated with how we currently understand the child, I have proposed an alternative way in which to conceptualize the child: a conceptualization based on the "ethic of care".  In this concluding chapter I will summarize the insights offered by this thesis and discuss the likelihood of the ethic of care being incorporated into Canadian family law. I will also suggest how the research might be taken further, focusing in particular on whether the ethic of care might offer some assistance to those advocating for greater recognition of "non-traditional" family forms.  125  6.2  Introducing an Ethic of Care into Canadian Family Law  In this thesis I have argued that since the early 1980's there has been a major ideological and normative shift in the approach to post-separation parenting in family law throughout the western world, including Canada. The concept of "shared parenting" and the presumption that ongoing contact with both parents following separation or divorce is in a child's "best interests", have come to dominant the Canadian law reform debates. The 1  prominence of these issues has been the result of several factors, including an assumption that women's increased labour force participation has meant that caregiving is equally shared between men and women, a perceived gender bias against fathers in family law, a desire to reduce the "proprietorial" nature of disputes about children and re-privatize the costs of child-rearing within the family, and society's changing perceptions of "the child". This latter factor has been the focus of this thesis. 2  In considering the recent changes in society's perceptions of the child I found that, historically, children have been conceptualized using one of two dominant models. The protectionist model, which prevailed from the seventeenth to nineteenth centuries, viewed children as a combination of vulnerable, innocent and uncivilized. Thus, children needed 3  to be both protected and disciplined. In contrast, the children's rights model, which began to emerge in the early 1900's and remains prominent today, relies on the liberal notion of the rational, rights-bearing individual, and treats children as independent and autonomous beings, with the right to express their views in relation to matters that affect their lives.  4  At the same time as the children's rights model has grown in stature, the "best interests of the child test" has emerged as the paramount principle to be applied when making  See, eg, Parliament of Canada, For the Sake of the Children, Report of the Special Joint Committee on Child Custody and Access, December 1998 ["For the Sake of the Children"]; Helen Rhoades, "The Rise and Rise of Shared Parenting Laws" (2002) 19 Canadian Journal of Family Law 75; Susan Boyd, Child Custody, Law, and Women's Work (Don Mills, O N : Oxford University Press, 2003) at chs. 6-8. Rhoades, ibid, at 79-85. 1  2  Chris Jenks, ed., The Sociology of Childhood: Essential Readings (London: Batsford, 1982); Chris Jenks, Childhood (London: Routledge, 1996); Martin Hoyles, Changing Childhood (London: Writers and Readers Publishing Co-op., 1979). 3  4  Philip Veerman, The Rights of the Child and the Changing Image of Childhood (Dordrecht: Martinus  Nijhoff, 1992); Michael Freeman, The Rights and Wrongs of Children (London: Frances Pinter, 1983); Chris Barton & Gillian Douglas, Law and Parenthood (London: Butterworths, 1995) at 423.  126  custody and access determinations in Canada. The simultaneous rise of both children's 5  rights and the best interests principle has arguably created a family law system in which certain ideological assumptions about what is in a child's best interests have been reframed as the child's "rights".  6  In discussing the two models with which to conceptualize the child - the protectionist and children's rights models - 1 came to the conclusion that each is fundamentally flawed. Protectionism is paternalistic, de-contextualizes the child by presuming he or she has an inherent "nature", and denies the child a voice. Equally problematic, the children's rights model presumes the social desirability of the liberal individual, emphasizes rights over relationships and universal principles over concrete situations, and is vulnerable to appropriation by interest groups who claim to act on children's behalf. Given the flaws inherent in both of the models available, I proposed a third model - conceptualizing the child based on an "ethic of care" - that might be more appropriate. Unlike the other models, an ethic of care understands children in a relational context, grounds decisionmaking in the actual circumstances of children's lives, and emphasizes the importance of the activity of care. Such an approach, because it is based on a principle of actuality, would more accurately reflect the circumstances of the child's life than either of the other two models, and would necessarily incorporate the voice of the child into the decisionmaking process.  See, eg, Divorce Act, R.S.C. 1985 (2 Supp.), c. 3, s. 16(8) ["Divorce Act']; Family Relations Act, R.S.B.C. 1996, c. 128, s. 24; Domestic Relations Act, R.S.A. 2000, c. D-14, s. 59(2); Children's Law Reform Act, R.S.O. 1990, c. 12, s. 20(2); Children's Law Act, S.S. 1997, c. C-8.2, s. 8; Family Services Act, S.N.B. 1983, c. F-2.2, s. 129. 5  nd  Carol Smart, "Losing the Struggle for Another Voice: The Case of Family Law" (1995) 18 Dal. L.J. 173 at 184; Dawn Bourque, '"Reconstructing"' the Patriarchal Nuclear Family: Recent Developments in Child Custody and Access in Canada" (1995) 10 C.J.L.S. 1 at 6; Susan Boyd, "Is There an Ideology of Motherhood in (Post)Modern Child Custody Law?" (1996) 5 Social and Legal Studies 495 at 502; Linda Neilson, "Partner Abuse, Children and Statutory Change: Cautionary Comments on Women's Access to Justice" (2000) 18 Windsor Y . B . Access Just. 115. 6  The phrase "ethic of care" was first used by feminist sociologist Carol Gilligan who found in her research on moral psychology that women, when asked to respond to moral dilemmas, adopt a distinctive moral voice. Gilligan named this voice the "ethic of care" or of relationships. Gilligan argued that this "different voice" was in stark contrast to the voice of "justice" usually employed by men, but that it was as coherent and mature as the theoretically dominant "ethic of justice": see Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (Cambridge: Harvard University Press, 1982). 7  * Ibid, at 19.  127  To conceptualize the child through an ethic of care would necessarily involve a significant shift in the current legal and social framework. However, given that Canadian custody and access law is currently undergoing reform, I felt it was important to 9  consider the extent to which the ethic of care is incorporated within the current reform proposals. I chose to look specifically at Bill C-22, the Bill that, if passed, would amend 10  the custody and access provisions of the federal Divorce Act. I also addressed the historical and ideological context in which it emerged. Bill C-22 does, to a degree, incorporate an ethic of care, most particularly by drawing attention to the importance of relationships, the harm that can be caused to relationships by violence and abuse, and 11  12  the history of care for the child. It is also gives the child a voice in custody and access 13  decision-making. However, the Bill largely fails to incorporate the principle of actuality 14  and, because it requires the balancing of what are arguably competing provisions in relation to violence and the maintenance of relationships, it leaves open the possibility 15  that in its interpretation it will be used to justify a presumption that ongoing contact with both parents is always in a child's best interests. These factors obviously raise significant concerns for those who advocate a greater role for the ethic of care in family law decision-making.  While Bill C-22 could be amended so that it better incorporates an ethic of care, 1 16  ultimately concluded that the rhetoric of justice, rights and equality, and the pro-contact regime this rhetoric has produced, is so ingrained in the best interests test that it may be impossible for Bill C-22, or any other statute that relies on the best interests principle, to See, eg, For the Sake of the Children, supra note 1; Canada, Final Federal-Provincial-Territorial Report on Custody and Access and Child Support: Putting Children First, November 2002 ["Putting Children  y  Firsf']. For a discussion of the reform process see: Boyd, supra note 1 at chs. 6-8.  Bill C-22, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and to amend other Acts 10  in consequence, 37 Pari, 2002 ["Bill C-22"]. Bill C-22, s. 16.2(2)(b),(h) & (i). Bill C-22, s. 16.2(2)(d). Bill C-22, s. 16.2(2)(c). Bill C-22, s. 16.2(2)(f). th  11  1 2  1 3  1 4  See, eg, Bill C-22, s. 16.2(2)(b) ("the benefit to the child of developing and maintaining meaningful relationships with both spouses") and s. 16.2(2)(d) ("any family violence, including its impact on (i) the safety of the child and other family members"). 1 5  1 have suggested in Chapter 4 several amendments to Bill C-22 to that effect, most notably the inclusion of a provision that would encourage contact with both parents only when it is "positive and safe to do so": ch. 4 at pp. 91-92, above. 16  128  ever adequately incorporate an ethic of care. It may therefore be necessary to replace the best interests of the child test with a new decision-making framework that derives from the ethic of care. There are several models upon which such a framework might be based. The "approximation principle" (as recommended by the Katherine Bartlett and the 17  American Law Institute) Rhoades),  and the "status quo" principle (as discussed by Helen  both rely on pre-separation caregiving patterns as a means by which to  determine post-separation caregiving arrangements. The approximation principle is 19  based on the premise that the optimal legal framework for custody and access decisionmaking is one that "focuses (almost) exclusively on the past relationships between parents and child and seeks to approximate as closely as possible the pre-divorce patterns of parental responsibility in the custody arrangements." If the approximation principle 20  were to be incorporated into Canadian law it would be set as a "default rule" for custody and access decision-making when the parents do not otherwise agree.  21  Similarly, the  "status quo" principle, which focuses on the family's "social reality", requires that following separation the caregiving "status quo" be maintained, while still taking into account the quality of the relationships between the child and his or her parents, and the effects of any domestic violence. A third alternative to the "best interests" principle - the "principle and presumptions" model proposed by Australian academic Juliet Behrens - perhaps offers the best solution. Behrens argues that custody and access legislation should include a combination of both principles and presumptions, with principles stating the broad value (for example, the  Katharine Bartlett, "Improving the Law Relating to Postdivorce Arrangements for Children" in Ross Thompson & Paul Amato, eds., The Postdivorce Family: Children, Parenting and Society (Thousand Oaks, C A : S A G E , 1999) 71; American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (Philadelphia: Executive Office, American Law Institute, 1997) ["ALI Principles"]. Bartlett drew on the work of Elizabeth Scott who first discussed the approximation principle: Elizabeth Scott, "Pluralism, Parental Preference, and Child Custody" (1992) 80 Cal. L . Rev. 615. 1 7  Susan Boyd, Helen Rhoades & Kate Burns, "The Politics of the Primary Caregiver Assumption: A Conversation" (1999) 13 Austl. J. Fam. L 233 at 250-51. It should be noted that both the ALI Principles and the version of the "status quo" principle described by Helen Rhoades do not abolish the best interests test altogether. For example, the A L I Principles states that where past caretaking patterns are too complex or unstable to provide a guide to decision-making, the best interests test comes back into play: A L I Principles, supra note 17 at § 2.08(3). Scott, supra note 17 at 630. ALI Principles, supra note 17 at § 2.08(1). Boyd, Rhoades & Burns, supra note 18 at 250. 1 8  1 9  2 0  2 1  2 2  129  ethic of care), and presumptions indicating some of the (value-based) outcomes. For 23  example, under the principles and presumptions model an ethic of care would be incorporated into Canadian family law at the level of principle, but rebuttable presumptions that qualify the discretion inherent in a principle-based system, such as a presumption that a court cannot make an order in favour of a parent who has engaged in violence, would also be introduced. Such an approach maintains the ideal of individualized decision-making required by an ethic of care, while addressing the inherent indeterminacy of a largely discretionary system.  If the ethic of care is going to be incorporated into Canadian family law, the principles and presumptions model might be the best way by which it might be introduced. Because it safeguards against an entirely principle-based system through the use of rebuttable presumptions, it is the model that is least likely to allow a particular ideology - such as the view that ongoing contact is always in a child's best interests - to solidify into a legal rule. However, because it is not based entirely on presumptions it also ensures that individualized decision-making remains the focus of the process. For example, it allows the court to consider the strength of the relationships between the child and his or her parents, as well as the history of caregiving for the child. Such an approach is fundamental to an ethic of care.  Suggesting the abandonment of the best interests principle is obviously a controversial proposal. This is unfortunate for those who wish to see an ethic of care incorporated into custody and access decision-making because the best interests test, and the rights and equality framework which currently dominates its interpretation, are perhaps the biggest obstacles to reform. However, a growing number of family law academics are suggesting that the best interests principle should be abandoned or at least diminished For 2 4  Juliet Behrens, "The Form and Substance of Australian Legislation on Parenting Orders: a Case for the Principles of Care and Diversity and Presumptions Based on Them" (2002) 24 J. Soc. Welfare & Fam. L . 401. 2 3  See, eg, John Eekelaar, "Beyond the Welfare Principle" (2002) 14 Child and Family Law Quarterly 237; Helen Reece, "The Paramountcy Principle: Consensus or Construct?" (1996) Curr. Legal Probs. 267; John Herring, "The Welfare Principle and Parents' Rights" in Andrew Bainham, Shelley Day Sclater & Martin Richards, eds., What is a Parent? A Socio-Legal Analysis (Oxford: Hart Publishing, 1999); Joseph 2 4  130  example, Helen Reece has recently argued that the best interests principle (or "welfare" principle as it is referred to in the U K )  2 5  should be abandoned because, while it rests on  solid consensus, the principle has a questionable rationality.  26  Reece argues that there is no doubt that the welfare principle is firmly ensconced in child 97  custody law in the U K and elsewhere.  It has, at various times, been described as the  "golden thread" running through the Children Act,  2$  the "bedrock of the [Children]  Act", and the "cornerstone of the current [family] law". Even those who are not 29  30  completely convinced of the merits of the principle "feel compelled, for pragmatic reasons, to argue from within the paradigm".  As Martha Fineman argues, "[a]sserting  that a position.. .conforms to, or is advanced in a manner designed to advance, the best interests of the child has become the rhetorical price of entry into the debate over custody policy". Despite the general consensus over the best interests principle, Reece believes 32  it is fundamentally flawed for two reasons. First, because of its inherent indeterminacy the best interests principle allows value-laden, arbitrary, and even capricious assumptions to be incorporated into the test. For example, in cases involving gay or lesbian parents, the best interests test can be construed to incorporate assumptions about "good parenting" and "good families" that are based on the judge's individual beliefs about homosexuality, rather than any notion of the "best interests" of the child. Thus the indeterminacy of the 33  best interests principle allows other policies and principles to "smuggle themselves" into Goldstein, Anna Freud & Albert Solnit, Beyond the Best Interests of the Child (New York: Free Press, 1979) at 54. Section 1(1) of the Children Act 1989 (UK) provides that when a court determines any question with respect to the upbringing of a child, the child's "welfare" should be the court's paramount consideration. Reece, supra note 24 at 268. 2 5  2 6  Similarly, a recent Canadian study found that 99 per cent of lawyers surveyed thought that the best interests test should be retained: Joanne Paetsch, Lorne Bertrand & Joseph Hornick, Consultation on Child Support Guidelines and Custody and Access, Federation of Law Societies of Canada and Canadian Research Institute for Law and the Family, 2001. Reece argues that the best interests principle is not only accepted in legal circles, but is supported across the mainstream political parties and the general public: Reece, supra note 24 at 269-70. 2 7  2 8  2 9  3 0  3 1  Lord Mackay, "Perceptions of the Children Bill and Beyond" (1989) 139 New L.J. 505. Re B [1993] 1 F L R 543 at 552 (per Butler-Sloss L.J.). Peter Bromley & Nigel Lowe, Bromley's Family Law (London: Butterworths, 1992) at 294. Reece, supra note 24 at 269.  Martha Fineman, "Politics of Custody and Gender: Child Advocacy and Transformation of Custody Decision Making in U S A " in Carol Smart & Selma Sevenhuijsen, Child Custody and the Politics of Gender (London: Routledge, 1989) 27 at 36. Reece, supra note 24 at 286. 3 2  3 3  131  family law decision-making. Second, Reece argues that the best interests principle is 34  irrational because it pretends that only children's interests are at stake in custody and access disputes. It ignores the interests of other parties, such as parents, and fails to recognize that the child's welfare is often linked to the welfare of other parties. In light of these flaws, Reece concludes that "[t]he paramountcy principle must be abandoned, and replaced with a framework which recognizes that the child is merely one participant in a process in which the interests of all participants count."  35  In another recent critique of the best interests principle, British legal academic John Eekelaar also recommends its abandonment.  In Eekelaar's view there are several  reasons for taking such action. First, there is what he refers to as the "lack of transparency" objection: that the best interests test might "fail to provide sufficient protection to children's interests because its use conceals the fact that the interests of others, or, perhaps untested assumptions about what is good for children, actually drive the decision."  The second criticism is what might be termed the "lack of fairness"  objection, which resonates with the arguments made by Reece. The "lack of fairness" 38  objection is based on the argument that the best interests principle, because of its exclusive focus on the child, prevents proper consideration of the interests of participants other than the child.  In proposing an alternative to the best interests principle, Eekelaar sought to retain its virtues, while at the same time ensuring that the alternative would adequately recognize the interests of both children and adults, and prevent the concealment of political interests within it. Eekelaar suggested that this might be achieved by eliminating the notion of "interests", which can be too easily used to cover anything someone else thinks is good  34  Ibid, at 268.  Ibid, at 303. Unfortunately, Reece does not make any suggestions as to what might replace the best interests principle other than a framework which recognizes the welfare and interests of all participants in child custody and access disputes. Eekelaar, supra note 24. 3 5  3 6  37  39  Ibid, at 237. Ibid, at 238.  Eekelaar himself is not entirely convinced by this argument because it leaves the unanswered question of how the interests of all of the participants, including the child, are to be balanced: ibid. 3 9  132  for you, and adopting the more nuanced notion of "well-being". While there is no 40  universal conception of what constitutes "well-being" he makes the following suggestions:  For these purposes, I would summarise a person's well-being as being indicated by the degree of success achieved in realising the person's significant goals in life... .This would include the physical and mental health of the person necessary to achieve those ends; the opportunity to maintain and establish important personal relationships; the ability to benefit from educational, social and economic activity and to integrate into society; the ability to develop abilities and interests and to realize life goals. It will be clear that these include moral, or other-regarding, components, for success in relationships and integration in society cannot be easily achieved without them. It will also be clear that there is an important element of self-determination, since, as Joseph Raz put it 'a person's well-being can be promoted only through his [sic] willing acceptance of goals and pursuits.' However, it is equally evident that this is not synonymous with the mere pursuit of desires or superficial, transitory, contentment. 41  In the context of family law decision-making, Eekelaar's proposal would mean adopting a course of action that avoids inflicting the most damage on the well-being of any interested individual.  42  Eekelaar recognizes the difficulties involved in abandoning the best interests test, especially if it is to be replaced with a test that seems more complex or unrealistic  4 3  As  he explains: The [best interests] test is too ingrained to be easily displaced. Certainly one could not imagine the judiciary easily abandoning it. It is easier and more comforting simply to say that we are all doing what we think is best for the child. But the very ease of the [best interests] test encourages a laziness and unwillingness to pay proper attention to all the interests that are at stake in these decisions. 44  However, in Eekelaar's view, abandoning the best interests test may not seem so "unthinkable" or such a challenge to "reality" if a reasoned and structured alternative is  w  41  Ibid, at 243. Ibid.  Ibid. Eekelaar draws a distinction between his approach and the "least detrimental alternative" proposed by Goldstein, Freud and Solnit on the basis that his approach may involve choosing an alternative that diminishes the well-being of the child, but would avoid greater detriment to a parent. In contrast, the "least detrimental alternative" approach focuses solely on the child, and thus the alternative that is least detrimental to the child must always be chosen. For a discussion of the "least detrimental alternative" see: Goldstein, Freud, & Solnit, supra note 24. Eekelaar, supra note 24 at 248.  4 2  4 3  44  Ibid, at 248.  133  presented at the same time. It has been my argument throughout this thesis that the ethic 45  of care might provide such an alternative. A growing number of family law commentators are arguing for a greater role for the ethic of care in family law decisionmaking, and an increasing number of legislative reform proposals are drawing on 46  elements of the ethic of care. There is also some evidence of a willingness to 47  incorporate certain elements of the ethic into family law decision-making in several jurisdictions. Thus while it might sometimes seem that the best interests principle is too 48  ingrained in Canadian family law to be displaced, the prospect of a viable alternative, in this case the ethic of care, might be the first step in a long and complex process of change.  6.3  49  Possibilities for Further Research: the Ethic of Care and "Non-traditional" Families  Throughout this thesis I have attempted to consider how the introduction of an ethic of care into Canadian custody and access decision-making might affect families that do not conform to "traditional" models. However, I have not been able to do much more than speculate on what that impact might be. Given the dramatic changes that are currently taking place in Canadian families today, in particular the prospect of same-sex marriages being included within the Divorce Act,  50  45  and the growing recognition of child-rearing  Ibid, at 237.  Carol Smart & Bren Neale, Family Fragments? (Cambridge: Polity Press, 1999); Boyd, Rhoades & Burns, supra note 18; Bartlett, supra note 17 at 71-102; Selma Sevenhuijsen, Citizenship and the Ethics of 4 6  Care: Feminist Considerations on Justice, Morality and Politics (London: Routledge, 1998).  Behrens, supra note 23; Bartlett, supra note 17; Scott, supra note 17 at 630; ALI Principles, supra note 17; Boyd, Rhoades & Burns, supra note 18 at 250-51. See, eg, the application of the status quo principle in interim hearings in Australian family law, and the adoption of the ALI Principles' "approximation principle" by the state of West Virginia (W. VA. CODE §§ 48-11-101-604 (Supp. 2000)). See also the discussion in Chapter 4 about the degree to which the ethic of care is present in Bill C-22: ch. 4 at pp. 87-100, above. 1 do not wish to suggest that taking thisfirststep will be easy. Obviously, law and society are interconnected and any legal changes will only be successful if they coincide with a societal shift in thinking. Following legal decisions in several provinces that have confirmed that the common law rule that defines marriage as between a man and a woman is constitutionally invalid because it contravenes the equality provision in the Charter, the federal government has begun the process of drafting legislation that would permit same-sex marriage: see Canadian Department of Justice, News Release, "Minister for Justice Announces Reference to Supreme Court of Canada" (17 July 2003). For the case law on the issue see: 4 7  4 8  49  5 0  Halpern v. Canada (Attorney-General), 2003 O.J. No. 2268; Halpern v. Canada (Attorney-General) (2002)  134  practices that differ according to cultural tradition, it is important to consider whether 51  the ethic of care is capable of meeting the needs of all Canadian families.  Increasingly, the normative models of family - the heterosexual, white, middle class family, the biological family, the nuclear family, and the patriarchal family - do not reflect the experiences of all Canadian children. In fact, an increasing number of Canadian children are being raised in "non-traditional families", such as common law families,  52  step-families, single-parent families,  53  or lesbian or gay families,  54  or families  made up of people other than their biological parents. In recent years there has also been greater recognition of the intricate kinship networks involved in the raising of indigenous and other non-white children in Canada.  55  This fact was evidenced in the Special Joint  Committee hearings where several witnesses talked of the particular importance of children to Aboriginal culture, and referred to the cultural traditions that place children at the centre of very close, extended family structures.  56  215 D.L.R. (4 ) 223, 28 R.F.L. (5 ) 41; EGALE Canada Inc. v. Canada (Attorney-General), 2003 B.C.J. No. 1582 EGALE Canada Inc. v. Canada (Attorney-General) (2001) 9 B . C . L . R . (3d) 122, 19 R.F.L. (5 ) 59; Hendricks andLebouefv. Quebec [2002] J.Q. No. 3816. See, eg, the inclusion within the best interests test in Bill C-22 of the requirement that the court take into account "the child's cultural, linguistic, religious and spiritual upbringing and heritage, including aboriginal upbringing and heritage". For the Sake of the Children also included sections dealing with "Aboriginal Concerns", and "Sexual Orientation, Religious and Ethno-Cultural Minorities and Canadians Living Abroad": For the Sake of the Children, supra note 1 at chs. 6, 7. Eight per cent of Canadian children live in common law families: Statistics Canada, Families, Households and Housing, 1996 Census. Seventeen per cent of Canadian children live in single-parent families, and in 80 per cent of those families the parent is a single parent because of relationship breakdown or an out-of-wedlock birth: ibid. Research suggests that between 20 and 30 per cent of lesbian women in Canada are mothers: see Katherine Arnup, ed., Lesbian Parenting: Living With Pride and Prejudice (Charlottetown, PEI: Gynergy Books, 1995). Similar trends have been found in Australia where surveys of lesbian women in Sydney have found that approximately 19 per cent had children and a further 14.5 per cent intended to have children in the next five years: Lesbians on the Loose, L O T L , Sydney, March 1996. In a series of surveys of lesbian women also conducted in Australia it was found that 14.3 per cent of women had children in 1993, 19 per cent had children in 1995, and 21.8 per cent had children in 1999, indicating a discernible trend towards parenthood in Australia's lesbian population: Significant Others, "Australian Lesbians get used to Being Called Mum", News Release, 30 March 2000. Finally, of the 3255 of lesbian couples who responded to the first New Zealand census question on same-sex couples in 1996, 21 per cent of them had children: cited in Myra Hauschild & Pat Rosier, Get Used to It? Children of Gay and Lesbian Parents (Melbourne: Spinifex, 1999) at 14. th  th  th  5 1  5 2  5 3  5 4  See, eg, Marlene Brant Castellano, Aboriginal Family Trends: Extended Families, Nuclear Families, Families of the Heart, Vanier Institute of the Family, 2002. See, eg, submission of Ethel Blondin-Andrew, Secretary of State (Children and Youth), Special Joint Committee on Child Custody and Access, 2 November 1998, Proceedings of the Special Joint Committee 5 5  5 6  135  Many of these new (or newly recognized) models of family do not conform to the heterosexual, white, middle-class, two-parent model presumed by Canadian family law. In fact, some of them may directly conflict with the current ideological framework. For example, in same-sex families, which can now be sanctified by marriage, "father (or mother) absence" will be common, biological parenthood will be largely irrelevant, and a child may have three or more "parents". Similarly, in some indigenous families where 57  children are raised within a wide kinship network, a two-parent model may simply be inappropriate. Thus as Canadian families continue to diversify it is of particular importance that our conceptualization of the child does not tie us to one particular model of family. The law can no longer remain static and attempt to mould the families that come before it into the model of family it prescribes. Rather it must change to reflect the changing nature of the families it serves.  Unfortunately, in many ways Bill C-22 fails to reflect the changing nature of family in Canada, and in some ways it reinforces the traditional models. For example, its emphasis on maintaining ongoing contact with "both parents" following divorce reinforces the twoparent, patriarchal, biological and nuclear family. The ideological impetus behind Bill 58  C-22 is also premised on a two-parent, biological and heterosexual model of family and, in particular, on the importance to the child of having a father. In contrast, the ethic of 59  care, because it focuses on relationships, the concrete circumstances of a child's life, and actual caregiving patterns, does not presume or enforce any particular model of family or ideological norm. It does not assume that a child has only two parents, that those parents are of the opposite-sex, or that they are biologically related to the child. It also does not assume that only biological parents can be caregivers. Rather, the ethic of care demands  on Child Custody and Access (Ottawa: Public Works and Government Services, 1998) (available at:  www.parl.gc.ca) ["Proceedings"]. For example, a child being raised in a same-sex family may have three or four functional parents who are not necessarily biological parents. Bill C-22, s. 16.2(2)(b). See, eg, Submission of Heidi Nabert of the National Shared Parenting Association, 11 March 1998, Proceedings, supra note 56; Submission of Rick Morrison of Fathers for Justice, 31 March 1998, Proceedings, supra note 56; Submission of Danny Guspie of the National Association of Shared Parenting, 5 7  5 8  5 9  11 March 1998, Proceedings, supra note 56  136  that custody and access decision-making acknowledge the importance of relationships and the activity of care, and reflect the individual circumstances of the child's life, however "different" they may be.  60  Thus while there may be little political interest in abolishing the best interests of the child test, as Canadian families continue to diversify the limiting nature of the test may become more apparent. Perhaps the next step in the research process is to consider whether the ethic of care might offer some solutions to the challenges raised by the changing nature of family in Canada. I have already established that the ethic of care is a viable alternative to the current family law regime, but I have not been able to address its particular impact on "non-traditional" families. Further research might look more closely at whether the ethic of care is an appropriate principle for custody and access decisionmaking across all Canadian communities. Such a study would need to identify the various family arrangements present in Canada, and the degree to which an ethic of care could respond to each of them. This would necessarily require talking to the people involved, discovering how they conceive of "family", and determining what legal framework could usefully address their conceptions.  61  6.4  Conclusion  This thesis has provided a critical analysis of the changing nature of our conceptualization of "the child", and the role that these changes have played in the recent  Possible problems with the ethic of care might arise in cases where the "differences" unearthed when considering the individual circumstances of a child's life must be weighed up against each other. For example, in cases involving disputes over religion, the courts would need to decide whether all of the individualized circumstances of a child's life (for example, being raised within a religious cult) should be respected and reflected in court orders. This complex question is dealt with by Shauna Van Praagh who suggests that neither a best interests analysis nor a constitutional analysis based on parental rights provide an adequate response to the task of making custody and access decisions where religion is involved. Van Praagh suggests that the best approach might involve balancing a child's interests of identity (within a religious community) and integrity (which she defines to include the protection of children's bodies, minds, and spirits from harm of damage), because such an approach respects religious freedoms and custodial authority, while also acknowledging the realities of the lives of children of interfaith families. See Shauna Van Praagh, "Religion, Custody, and a Child's Identities" (1997) 35 Osgoode Hall L. J. 309. Further research might also include considering how conceptualizing the child through an ethic of care might impact on other areas of the law such as education law, immigration and refugee law, and youth justice. Such discussions are unfortunately beyond the scope of this thesis. 6 0  6 1  137  custody and access law reform debates in Canada. I have concluded that Canadian custody and access law must be revisioned through an ethic of care. A n ethic of care understands the child in the context of relationships, bases decisions on the concrete circumstances of the child's life, and emphasizes the activity of care. The ethic of care therefore avoids prescribing any particular model of family, or assuming that a certain post-separation arrangement is in a child's "best interests". Unfortunately, incorporating an ethic of care into Canadian family law will be difficult, particularly given the dominance of the best interests test. However, an increasing number of legal academics have suggested the abolition of the best interests test, on the basis that it lacks transparency and fairness, and has come to encompass particular ideological assumptions. I have therefore concluded that the only way in which an ethic of care can be incorporated into custody and access decision-making in Canada is through the abolition of the best interests principle. While there is little political will to take such action, the possibility of a viable alternative - the ethic of care - might be the first step towards change.  138  BIBLIOGRAPHY  LEGISLATION  An Act Respecting Infants and their Estates, S.M. 1878, 41 Vict, c. 7. 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