Speech by Senator Anne C. Cools

Honoured guests, ladies and gentlemen, as a senator of 32 years, I am pleased to join you at the University of British Columbia.  Tonight I speak on children’s wellbeing, this vast subject that preoccupied my endeavours for decades.  I am touched by this moment’s link to Janusz Korczak, that special man who worked to improve the lives of children, this precious portion of the human race.  I laud those late nineteenth century persons like Lord Shaftesbury and Doctors Korczak and Maria Montessori, who led the world to know that children are complete human beings from birth, persons who deserve and need adult respect, and wise parental affection and guidance.  As a child, I attended a Montessori.   I learned early to love reading and writing, and to think clearly and independently.  I thank those here who work for children’s wellbeing.

My friends, my subject is the best interests of the child.  By our Constitution, children’s affairs are vested not in our federal jurisdiction, but in the provinces.  The provincial 1914 Ontario Children’s Protection Act, section 22.(3), said:

Where it appears to the Judge that the public interest and the interest of the child will be best served thereby, an order may be made for the return of the child to its parents or friends, or the Judge may place such child under the guardianship of the children’s aid society or of an industrial school.[1]

Note the likeness to the words the best interests of the child, found in many provincial child protection and welfare statutes.  Federally, there are only two statutes about children.  These are the Divorce Act and the Youth Criminal Justice Act, formerly the Young Offenders Act, formerly the Juvenile Delinquents Act, born of the late nineteenth century genesis in child welfare. The 1929 Juvenile Delinquents Act’s legal conceptual framework was the welfare of the child and the parens patriae.  These saw delinquency not as an offence, but as a condition in the child needing parental care and guidance.  This Act’s section 3.(2) said:

Where a child is adjudged to have committed a delinquency he shall be dealt with, not as an offender, but as one in a condition of delinquency and therefore requiring help and guidance and proper supervision. [2]

From this came the juvenile courts and, later, the family courts.

My friends, in Canada until 1968, divorce was difficult, costly and rare.  They proceeded by the British 1857Divorce and Matrimonial Causes Act in our provinces, except Quebec and Newfoundland, where they moved as individual private bills in parliament.   Begun as private bill petitions in the Senate, these individual divorce bills were debated and voted there.  Then, without amendment, they were voted in the House of Commons, then given the Governor General’s Royal Assent.   Canada enacted its first federal Divorce Act in 1968.   In 1984, the phrase the best interests of the child[3]and its conceptualframework were proposed for the Divorce Act by Liberal Justice Minister Mark MacGuigan.  His brainchild, he offered it in his paper, Divorce Law in Canada: Proposals for Change.   A legal scholar, he was Windsor University’s Dean of Law, onetime University of Toronto law professor, and later, judge of the Federal Court of Canada.  His 1984 divorce Bill C-10 died when parliament dissolved for the September 4 federal election.  The new Conservative Government’s Justice Minister, John Crosbie, reworked it, and introduced his own Bill C-47.  This kept MacGuigan’s best interests of the child legal framework, based in the parens patriae and welfare of the child doctrines.  In 1986, Bill C-47 was enacted as the current Divorce Act.

My friends, the origin and pedigree of this enduring phrase, the best interests of the child, are not well known nor understood, for many reasons, including the now stilled late 1980s to 1990s gender feminism that overtook  equality feminism.  The former held that women are morally superior to men and that men are morally inferior to women and even morally defective.  It held that moral and humane behaviour are gendered traits, that goodness and virtue are female, and that aggression, violence, and evil are male, all despite compelling evidence of gender parity and symmetry in violence.  Domestic violence was falsely framed as violence against women.  All this disfigured criminal law application in physical and sexual assault cases, and divorce law cases in child custody and access, and child and spousal support.  In divorce, this meant that mothers should have primary and greater parenting rights than fathers.  Their lawyers held that domestic violence cases should be decided by “women’s credibility,” that, since women are truth tellers, their physical and sexual assault accusations against their male partners should be treated as findings of guilt.  Those years saw a plethora of false accusations in divorce and child custody proceedings.  It was a heart of darkness, soul destroying for fathers, their mothers and the women in their lives.  In the 1994 Ontario case, D.B. v. Children’s Aid Society of Durham Region, Justice William Somers spoke about a witness, at paragraph 75:

Ms. Chisholm indicated that the experience has been for some time that sexual assault allegations made by a mother against a father in custody disputes are very prevalent nowadays and indeed have become what she called “the weapon of choice”.[4]

My friends, this female privilege found help in  the  Liberal Justice Minister’s 1997 Bill C-41 that amended Minister Crosbie’s Divorce Act which, by the best interests of the child conceptual framework,had embracedgenderequality in parenting and family life Bill C-41 set out to repeal the 1986 Divorce Act’s financial equality section 15.(8), that had enacted shared financial obligations for both mothers and fathers, to support their children.  It said:

An order made under this section that provides for the support of the child of the marriage                       should

a) recognize that the spouses have a joint financial obligation to maintain the child; and

b) apportion that obligation between the spouses according to their relative abilities to contribute to the performance of the obligation.[5]

Shared obligations were key to the child-centred gender equal 1986 Divorce Act federal reforms. These followed the 1970s provincial family law reforms that enacted joint and shared property ownership of the matrimonial home and assets.  The provinces had decreed shared marriage property.  The federal divorce law followed, enacting shared financial and affectionate care of the marriage’s children.  These 1986 Divorce Act reforms also spoke to wives’ financial dependence on husbands.  Section 15.2(6)(d), Objectives of spousal support order, decreed that support payments must:

in so far as practicable, promote the economic self-sufficiency of each spouse within a  reasonable period of time. [6]

Another 1986 Divorce Act equality reform was the friendly parent rule, section 16.(10)  that said:

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.[7]

In 2003, Liberal Justice Minister Cauchon’s Bill C-22 tried to repeal this friendly parent rule. We buried it.  It did not become law.

My friends, forged in the parens patriae doctrine by which the Sovereign Queen, the supreme guardian of children, and her superior court judges, owe children the high duty of decisions in their best interests, the child-centred Crosbie Divorce Act held great promise for balance, fairness, and equilibrium in divorce.  Sadly, later amendments to this Act, mainly Bill C-41, set out to defeat these reforms.  It repealed the Divorce Act’s gender equality child support sections, and replaced them with the new Federal Child Support Guidelines.  These, enacted as the Act’s regulations, decreed that child support payment amounts would be calculated solely on the income of non-custodial parents, mostly fathers, and paid to custodial parents, mostly mothers.  These calculated amounts do not factor in the custodial parents’ income.  Justice lawyers tried to convince senators that the custodial parent’s financial contribution was assumed.  Feigning the gender equality of the repealed child support section, the Federal Child Support Guidelines were enacted as the Divorce Act section 26.1(2), that:

The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.[8]

Sounds the same as the repealed section, but is not.

As regulations, meaning delegated or subordinated legislation decided by the Ministerthese Guidelines launched the legal pre-eminence of the financial over the affectionate duties of parents to children.   These regulated and dictated quantums undermined judicial independence, and the judges’ duties to children in child support decisions.  Bill C-41’s other Divorce Act change thendecreed the court’s duty to stay the divorce if the parents had not made reasonable child support arrangements for the children.  So amended, the Divorce Act, section 11.(1)(b), says:

In a divorce proceeding, it is the duty of the court .  .  .

(b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made;  .  .  . [9]

No reasonable child support arrangements, no divorce.  This section decrees no equal court duty to stay the divorce if the parents have not made reasonable arrangements for parenting the children.  The court’s power in the financial is more weighted than the affectionate.  The Department lawyers said that these changes were needed for uniformity in child support payments.  The uniform child is novel. The elevation of the parental financial duties over the affectionate is a strange beast.  It has no place in the best interests of the child, the Divorce Act decision framework. This was enhanced by the Income Tax Act change that ended the regime that the income tax on child support was paid by the lower income custodial parent recipient, mostly women.  Now the higher income, non-custodial parent, mostly men, would pay it.  Some hailed this divorce families’ loss as a windfall to the treasury.

Tonight I laud the late Mark MacGuigan, who enshrined the best interests of the child as the Divorce Act’slegal-judicial framework.   For him, the first of the child’s best interests is the child’s interest in its relationship with its parents, both mother and father.   He set out to effect and actuate shared parenting by enlisting the legal-judicial conceptual framework the best interests of the childas the standard for judges’ decisions.  By this, the Divorce Act vested Canada’s children as persons, separate from their parents, with rights to which they are entitled by law, and by nature’s sacred decree that human life is the result of two parents.  The phrase, the best interests of the child,is used five times in the Divorce Act, twice in section 16, for court orders in custody and access, and thrice in section 17, that varies, rescinds, or suspends orders.

My friends, now to this legal phrase’s pedigree in the common law and in the ancient British sovereign King’s law, the lex prerogativa, as the supreme guardian of children, the parens patriae.  Long ago, the King delegated this power to the highest judge after himself, the Lord Chancellor, the Keeper of the Great Seal, and the Keeper of the King’s conscience.  In his ancient Courts of Chancery and Equity, the Lord Chancellor exercised this unique jurisdiction to protect children and the vulnerable in equity.  Later, his courts acquired the powers of the King’s Courts of Wards and Liveries.  These originated when the children of knights killed in the King’s service became wards of the King, who protected them and their property, delivered to them on their maturity.  Later still, by the1873 union of the common law, chancery and equity courts, all high and superior court judges were vested with these high equity powers as child guardians.

Dear friends, the parens patriae is the ancient, but extant, power of the Queen as the country’s supreme parent and children’s guardian.   Black’s Law Dictionary, sixth edition, defines it at page 1114:

Parens patriae originates from the English common law where the King had a royal prerogative to act as guardian to persons with legal disabilities such as infants.[10]

Jowitt’s Dictionary of English Law, 1959 volume 2, also defines it, at page 1294:

The sovereign, as parens patriae, has a kind of guardianship over various classes of persons, who, from their legal disability, stand in need of protection, such as infants, idiots, and lunatics.[11]

Jowitt’s volume 1 explains the maxims of equity, at page 726:

.  .  .   equity acts in personam;  equity acts on the conscience; equity will not suffer a wrong to be without a remedy; equity follows the law;  equity looks to the intent rather than the form;  equity looks on that as done which ought to be done;  equity imputes an intent to fulfill an obligation;  equitable remedies are discretionary;  delay defeats equities; he who comes to equity must come with clean hands;  .  .  . [12]

The courts of chancery and equity were from time immemorial when literacy was rare but vital, and the clerics, ecclesiastics, were literate, and Lord Chancellors were chosen from them.  These literates and their literate clerks managed and recorded legal process, hence the terms chancerychancellor, and clerk or master in chancery.

My friends, now to Canada’s Court of Chancery and its powers for children.  In Upper Canada, the 1837 statute, the Act to Establish a Court of Chancery in this Province, enacted this court with like powers for children as Britain.  This Act, section II, read, at page 765:

And be it further enacted by the authority aforesaid, That the said Court shall have jurisdiction, and possess the like power and authority as by the laws of England are possessed by the Court of Chancery in England, in respect of the matters hereinafter enumerated, that is to say:  .  .  .  in all matters related to infants, ideots and lunatics, and their estates,  .  .  . [13]

Nova Scotia also had such a court.  Later, the Brits, by their 1873 Supreme Court of Judicature Act, merged their common law and equity courts.  This union vested their superior and high courts and judges with the chancery courts’ royal equity powers to protect children and their property.  Their 1873 Act, section 25.(10.), said:

In questions relating to the custody and education of infants the Rules of Equity shall prevail.[14]

Equity is conscience.  Like the Brits, Ontario’s 1881 Ontario Judicature Act merged its chancery, common law, and equity courts.  This vested the inherent chancery courts’ equity powers for children in our high and superior courts and judges.  Like the British Act, the Ontario Judicature Act sections 17.(9) and 17.(10) said:

(9) In questions relating to the custody and education of infants, the Rules of Equity shall prevail.

(10) Generally in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the Rules of Equity and the Rules of the Common Law with reference to the same matter, the Rules of Equity shall prevail.[15]

Equity’s rules and conscience prevail.  The law for children is ancient and true, though rooted in children who owned property.

My friends, the legal phrase, the best interests of the child,was set out in the celebrated defining judgment in the 1893 child protection case, Queen v. Gyngall, delivered in Britain’s Queen’s Bench Division, Court of Appeal.  This court, by the 1873 merger, had received the parens patriae and chancery’s equity powers.  In Gyngall, the child barely knew her poor birth mother, ever unable to care for her.  Much bounced around, the 15 year old child of delicate health was thriving in Miss Gyngall’s care, even training to be a teacher’s aide.  She strongly opposed her mother’s efforts to reclaim her.  The judicious judges spoke with the child. They ordered the child to Gyngall.

Master of the Rolls, the learned Lord Esher, the highest judge after the Lord Chancellor, led this masterful judgment.  About the court’s jurisdiction, he wrote, at page 239:

But there was another and an absolutely different and distinguishable jurisdiction, which has been exercised by the Court of Chancery from time immemorial. That was not a jurisdiction to determine rights as between a parent and a stranger, or as between a parent and a child.  It was a paternal jurisdiction, a judicially administrative jurisdiction, in virtue of which the Chancery Court was put to act on behalf of the Crown, as being the guardian of all infants, in the place of a parent, and as if it were the parent of the child, thus superseding the natural guardianship of the parent.  The present case arises after the Judicature Act, and the proceedings are in the Queen’s Bench Division.  The effect of that Act is, as I have often said, not to invent a new jurisdiction or to create new rights, but to alter the mode of procedure; and, there having been before two independent jurisdictions, one common law and the other equity, the Act in effect provides that, if a person proceeds in the Queen’s Bench Division under the common law jurisdiction, and it turns out that the case raises questions to which the Chancery jurisdiction is applicable, the Queen’s Bench Division judges are not to send the suitor to a Chancery Court, but are to exercise the Chancery jurisdiction themselves.[16]

Lord Esher went on, at page 240:

In the case of In re Spence (1), Lord Cottenham, L.C., said: “I have no doubt about the jurisdiction.  The cases in which this Court interferes on behalf of infants are not confined to those in which there is property.   .  .  .   .  This Court interferes for the protection of infants, quâ infants, by virtue of the prerogative which belongs to the Crown as parens patriae, and the exercise of which is delegated to the Great Seal.”[17]

Lord Esher said, at page 241:

How is that jurisdiction to be exercised? The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child.[18]

Lord Esher added, at page 242:

Then we have the case of In re McGrath (2), in which Lindley, L.J., said:  “.   .  .  .  .  The dominant matter for the consideration of the Court is the welfare of the child.  But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word ‘welfare’ must be taken in its widest sense.  The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”  The Court has to consider, therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child so far as it can be said to have any religion, and the happiness of the child.[19]

Then Lord Justice Kay said, at page 247:

.  .  . Lord Hardwicke, professing not to go upon guardianship and disclaiming wardship, puts it upon this:  that the Court represents the King, as parens patriae.[20]

He added, at page 248:

This statement of the jurisdiction shews that, arising as it does from the power of the Crown delegated to the Court of Chancery, it is essentially a parental jurisdiction, and that description of it involves that the main consideration to be acted upon in its exercise is the benefit or welfare of the child.[21]

In its “parental jurisdiction” the court distinguished the child from its parent.  Lord Justice Kay continues, at page 251:

So again and again in such cases, where the child was not of very tender years, the practice has been that the judge himself saw the child, not for the purpose of obtaining the consent of the child, but for the purpose, and as one of the best modes of, determining what was really for the welfare of the child.[22]

My friends, this 1893 caseset the stage and tone for the 20th century’s enriched legal-judicial approach to children as human persons with their own needs, distinct and separate from their parents.

In Queen v. Gyngall, Lord Justice Kay states, for the world and all humanity, the sensitive, well-established, and most famous words about the law on children,  that, at page 252:

As I have stated, the superintending power in respect of infants, which Lord Eldon said the Court of Chancery had always exercised by delegation from the Crown as parens patriae, must be exercised as the Court may think for the best interests of the child.[23]

The best interests of the child phrase is the conscience, humanity, and judicial power of the Sovereign and the state.

My friends, Ministers MacGuigan and Crosbie planted this judicial phrase the best interests of the child and its pedigree in the divorce law and lexicon to clarify and express curial and judicial duties to divorce’s children.  This phrase embodies and expresses the law that recognizes the child as an individual human person with rights, like Janusz Korczak’s concept that children are complete beings from birth.  It is a common mistake to unite the child’s interests with one or both parents.   Gyngall and like cases set forth the law and lexicon expressing the individual and complete child’s humanity.  Mindful of the harsh conditions in which children toiled, this 1893 legal framework the best interests of the child is one of the great contributions of the English high court judges to the common law world.  In the 1890s, when child welfare was emerging, one writer noted that, in one night on a Toronto street, he counted 700 children, ragamuffins, street urchins, street arabs, begging and scrounging.  Pioneer Ministers MacGuigan and Crosbie enshrined children’s positive rights in the federal divorce law, distinct from the provincial child protection law.  The child is its own person, with unique needs that include adult parental care.  Its legal disabilities are privileges that vest adults with duties to them.  It is, as this vulnerable separate being, that the child needs the love and care of its two parents.

My friends, now the 1925 defining American judgment in the New York Court of Appeal.  The case is Finlay v. Finlay, wherein Justice Benjamin Cardozo applied Queen v. Gyngall.   In judgment, he wrote, at page 938:

The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the parents.  It has its origin in the protection that is due to the incompetent or helpless.[24]

The clear-minded Justice Cardozo invoked the Lord Chancellor’s common and equity law jurisdiction, He cited Gyngall, at page 940:

The chancellor in exercising his jurisdiction upon petition does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against anyone.  He acts as parens patriae to do what is best for the interest of the child.  He is to put himself in the position of a “wise, affectionate, and careful parent” (Reg. v. Gyngall, supra), and make provision for the child accordingly.  He may act at the intervention or on the motion of a kinsman, if so the petition comes before him, but equally he may act at the instance of anyone else.  He is not adjudicating a controversy between adversary parties, to compose their private differences.  He is not determining rights “as between a parent and a child,” or as between one parent and another.[25]

Justice Cardozo explains equity, at page 940:

He “interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patriae.”  .  .  .  The plaintiff makes no pretense of invoking this paternal jurisdiction.  .  .  .  He invokes the jurisdiction of a court to settle a dispute.  Equity does not concern itself with such disputes in their relation to the disputants.  Its concern is for the child. [26]

Equity’s concern is the child.  These two judgments, Gyngall and Finlay, clarified the often overlooked fact that, in child cases, the high court judges’ duty is not to adjudicate or settle disputes between the parents.  It is to protect and decide the best interests of the child in the circumstances.

My friends, now to potential misunderstanding of the best interests of the child.  In Canada’s Supreme Court’s 1993 judgment, Young v. Young, Madame Justice Claire L’Heureux-Dubé dissented, concurred in by Justices La Forest and Gonthier.  About access parents, she wrote, at page 7:

The role of the access parent is that of a very interested observer, giving love and support to the child in the background.[27]

About the custodial parent, she said, at page 41:

The need for continuity generally requires that the custodial parent have the autonomy to raise the child as he or she sees fit without interference with that authority by the  .  .  .  non-custodial parent.[28]


About the non-custodial parent, she said, at page 47:

.  .  .  the non-custodial spouse with access privileges is a passive bystander who is excluded from the decision-making process in matters relating to the child’s welfare, growth and development.[29]

She describes men, at page 49:

. .  .   men as a group have not yet embraced responsibility for child care.[30]

Queen’s University Law Professor, Nicholas Bala, in his 1995 article, In the Best Interests of the Child, published in the Supreme Court Law Review, wrote on Young v. Young.  About Madame Justice, he wrote, at page 455-56:

Justice L’Heureux-Dubé  .  .  .  wrote a lengthy dissenting judgment in which she emphasized that the best interests of the child are served by protecting the position of the custodial parent  .  .  . [31]

He said, at page 461:

As in her 1992 spousal support judgment in Moge v. Moge, she offers an explicitly feminist analysis, discussing social science literature about gendered child care roles in marriage and after separation.[32]

Madame Justice’s words jolt the sensibilities.  Equity’s mind knows only the law and conscience.  It knows no social science literature, nor the non-custodial parent as bystander.  The best interests of the child, as law and equity, are not open to judges’ private beliefs. The jurisprudence is clear that the judges’ concern is the child, not the parents’ conflict, nor their gender, nor gender roles.  Justice Sopinka said the contrary, at page 15, that:

The best interests of a child are more aptly served by a law which recognizes the right of that child to a meaningful post-divorce relationship with both parents. The “rights” must be distributed between the custodial and the access parent so as to encourage such a relationship.[33]

The best interests of the child legal framework is in the Divorce Act to strengthen the court and the judges’ duties to divorce’s children.  For a while, family and divorce law were afflicted by divisive and unhelpful ideological debate.  It is clear that when family relations are most tense, divorce proceedings are poor forums for such debate.  It is also clear that poorly drafted statutes will plunge all into muddy waters.  For this, the best interests of the child was entrenched in the Act, to give judges good tools to do what they are constituted to do, in judicial independence and in their royal duty to uphold children, despite spousal dispute.

My friends, innocent children must not pay for history’s sins.  Ideology claims place heavy burdens on judges, who are neither family counsellors nor magicians.  The law the best interests of the childdecrees that judges be just.  As the most complete and authentic legal tool affirming children’s rights, the best interests of the child is not poetry, nor a well-intended, earnest expression of humanity.  It is the law of a “judicially administrative jurisdiction,” exercised exclusively by the judges in their ken, the courts, by their court orders.   But its fate and future lay in the legislative ken, parliament, and provincial assemblies which enact laws.