ON THE “POVERTY OF RESPONSIBILITY”: A STUDY OF THE HISTORY OF CHILD PROTECTION LAW AND JURISPRUDENCE IN NOVA SCOTIA by Ilana Dodi Luther Submitted in partial fulfilment of the requirement of the degree of Doctor of Philosophy at Dalhousie University Halifax, Nova Scotia August 2015 © Copyright by Ilana Dodi Luther, 2015 DEDICATION PAGE To my husband. ii Table of Contents ABSTRACT .......................................................................................................... v ACKNOWLEDGEMENTS ................................................................................... vi Chapter 1: Introduction: ..................................................................................... 1 On the “Poverty of Responsibility”: A History of Family Law for the Poor ............. 1 Child Protection Law and Families in Poverty ....................................................... 8 A Critical Historical Analysis of Child Protection Law in Nova Scotia .................. 20 A Feminist Understanding of the Social Regulation of Families in Poverty............ 27 Psychiatry and the Social and Legal Regulation of the Family in Poverty ............. 36 Chapter 2: 19th Century Nova Scotia: The Breakdown of the Victorian Family and the Emergence of Cruelty to Children as a Legal Problem ................... 59 The Legal Regime of the Victorian Family ........................................................... 64 Proliferation of Domestic Relations Legislation in Late 19th Century Nova Scotia .................................................................................................................. 76 Philanthropy, the New Child and the New Poor Law ............................................ 90 The Introduction of Canada’s First Child Protection Act ................................... 111 Acting “in the Shadow of the Law”: Daily Work of the Society ........................... 123 Conclusion ........................................................................................................ 136 Chapter 3: 1908-1940s: The Rise of Delinquency, the Normal Child and Socializing Justice in Nova Scotia ................................................................ 142 The Juvenile Delinquents Act, 1908, the Children’s Protection Act, 1912 and the Creation of the Juvenile Courts ......................................................................... 148 The Structure of Child Welfare in Halifax in the early Twentieth Century ......... 160 The Socializing Work of the Institutions ............................................................ 166 Socializing Justice: The Role of the Juvenile Court ............................................. 184 Socialized Justice versus Liberal Legalism: 1926-1940 ........................................ 204 Conclusion ........................................................................................................ 211 iii Chapter 4: 1940s- 1980s: Deinstitutionalization, Natural Parental Rights and the Rise of the “Unmarried Mother-Headed family” as a Legitimate Family ......................................................................................................................... 219 The Creation of Nova Scotia’s Provincial Public Assistance Regime ................... 224 De-Institutionalization, Familialization, and the Changing Role of the Halifax Children’s Aid Society ....................................................................................... 238 The Jurisprudence of “Natural Parental Rights”................................................ 257 The Contingency of Natural Parental Rights ...................................................... 269 The Legacy of the “Parents’ Rights Trilogy” in Nova Scotia and the Medico-Legal Regulation of the Unwed Mother ....................................................................... 275 Introduction of the Children’s Services Act ......................................................... 284 Conclusion ........................................................................................................ 295 Chapter 5:1980s to Present: Risk & Responsibility in Child Protection Jurisprudence ................................................................................................. 301 A Child-Centered System of Child Welfare ........................................................ 305 Legislating a Least Intrusive Model of Child Protection ..................................... 315 Neoliberal Restructuring of the Welfare State .................................................... 324 The Changing Nature of Social Work: The Shift to Risk Assessment .................. 330 From Objective Harms to Risk of Maltreatment ................................................ 343 Judicial Interpretation of Risk of Harm to the Child .......................................... 361 Justifying Services under the Residual Model of Child Protection ...................... 384 The Interconnection of Services and Time Lines ................................................ 387 Failure to Scrutinize the Adequacy of Services ................................................... 398 Conclusion ........................................................................................................ 404 Chapter 6: Conclusion: Rethinking Autonomy for Marginalized Children and Families ........................................................................................................... 412 A Supportive Legal Concept of Family Autonomy .............................................. 422 Proposed Amendments to the CFSA .................................................................. 435 Bibliography .................................................................................................... 448 iv ABSTRACT This thesis presents a history of child protection law and jurisprudence in Nova Scotia. The thesis begins by examining the development of the first child protection statute in Canada, the Nova Scotia Prevention and Punishment of Wrongs to Children Act in 1882. The Act was developed amidst a climate of reform in late-19th century Halifax, at the urging of the Society for the Prevention of Cruelty to Animals. The Act, along with a number of other pieces of “domestic relations” legislation at the time, was focused on protecting children in poverty. With the passing of the Act, the legislature not only set out the harms to children that would justify an intrusive intervention into the family, but it affirmed the presumption of family autonomy in a liberal society. In this thesis, I detail how, through history, the defining, adjudicating and remedying of harm to children through child protection law and jurisprudence has helped to construct the division between the public sphere and the private sphere of the family in poverty. I explore how the divide has shifted over time, responding to new ideas from welfare professionals about harm to children and their best interests, as well as social policies setting out the proper relationship between the family and the state. I show how, despite the fact that knowledge of what constitutes harm to children has shifted significantly over time, families marginalized at the intersection of poverty, racism, sexism and ableism have always been more likely to be constructed as “dissolute”, “unfit” or “risky”, justifying a coercive intervention into the family and the denial of state support. Without subjecting concepts of harm and best interests to critical analysis, child protection law and jurisprudence will continue to perpetuate the same processes of subordination based on race, class, gender and ability that render the child vulnerable in the first place. I conclude with recommendations for a supportive legal concept of family autonomy for socio-economically marginalized families. v ACKNOWLEDGEMENTS I would like to very gratefully acknowledge the contribution of my committee members, Dr. Alexandra Dobrowolsky and Prof. Sheila Wildeman, who have both provided me with their incredible insight, guidance, and patience over the past six years. I would especially like to thank my extremely patient, giving, and knowledgeable supervisor, D.A. Rollie Thompson, QC. For anyone who has had the privilege of working with Prof. Thompson you know that he is a wonderful teacher, scholar and mentor. I feel incredibly privileged to have been able to take up so much of his time. I also feel very privileged and grateful to have had such a wonderful external examiner. Prof. Susan B. Boyd’s work had a significant impact on this thesis from the beginning, and to meet her at the end of this journey and get her feedback was an incredible gift. Of course to my parents, Michael and Maureen Luther, to whom I “chalk” up my love of learning, and thank immensely for facilitating a passion which admittedly has gone on for probably too long. I thank my loving grandmother, Agnes Freeman, former nurse, welfare caseworker, and current mentor. And especially my husband, Piotr Stanisław Łuczak, who is just all around super great and understanding. vi Chapter 1: Introduction: On the “Poverty of Responsibility”:1 A History of Family Law for the Poor This thesis is about families in poverty. It is about how law has helped to construct the family in such a way as to address this poverty. This might seem counter-intuitive as we generally understand the state and government – ie., the public sphere – as having responsibility for the social welfare programs that help people in poverty. The family, by contrast, is a sphere of private, domestic