Date of Award
Doctor of Philosophy (PhD)
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.
Ilana Luther, On the "Poverty of Responsibility": A Study of the History of Child Protection Law and Jurisprudence in Nova Scotia (PhD Dissertation, Dalhousie University, Schulich School of Law, 2015) [unpublished].