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The Charter and the Children’s Welfare


In Canada, the end of the 19th century was marked by the emergence of foster care: putting children in family environments was considered more beneficial than holding them in orphanages and group houses. Both the 19th and 20th centuries were characterized by adopting a more humanistic approach towards handling family and child welfare matters. The family law governing the issues of spousal relationships, divorce, and custody was developing alongside the legislation concerning the children’s welfare.

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It is argued that the Charter of Rights and Freedoms entrenched into the body of the Canadian Constitution had a significant impact on family and children services. This essay will provide an overview of the Charter of Rights and Freedoms and discuss its effects on children’s welfare.

Charter of Rights and Freedoms

The Charter of Rights and Freedoms, otherwise known as merely the Charter, constitutes the first part of the Canadian Constitution. The Charter was signed into law by Queen Elizabeth in 1982 during Pierre Trudeau’s term (Government of Canada). There has been a clear rationale behind entrenching the Charter into the Constitution: the request was justified by the need for unifying the people of Canada around a common set of basic principles.

Post-war human rights movements also had an impact on the decision; it was deemed essential to include the guidelines provided by the Universal Declaration of Human Rights. Under the Charter, Canadian citizens can exercise numerous political and civil rights. The rights granted by the Charter fall under several categories, and namely, democratic, mobility, legal, equality, language, and minority language education rights (“Constitution Act”).

The enactment of the Charter also changed the way courts had to handle cases and interpreted the provisions of the document. In general, one may say that Canadian courts adopted purposive and generous interpretation of the rights under the Charter. That meant that courts were prescribed to embrace a broader understanding of the rights and liberties and focus on expanding their scope at the expense of the government as opposed to the traditional, limited understanding.

Impact on Children’s Welfare

The year 2012 was marked by the 30th anniversary of the enactment of the Charter of Rights and Freedom. Usually, such anniversaries present opportunities for reviewing the changes made by an act or legislation and assessing its impact on everyday life and juridical practice. In their 2013 article, Bala and Leckey stated that the significance of the Charter had been on the decline, and its application to legal processes in the field of family law was found to be reasonably limited.

The authors reasoned that the focus shifted to freedom, equality, and respect when handling family matters. Furthermore, after 30 years, the Charter was recognized as useful primarily in regards to child protection as it helped to build a child-centered legal system. Bala and Leckey go into detail on the compatibility of the Charter and modern family law: positive changes, specific gaps, and discrepancies.

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The Trajectory of the Jurisprudence

In the first years after the enactment, several statutes changed to become more compliant with the Charter. Those statutes are related to the fathers of children born outside marriage and the children themselves. Before the Charter of Rights and Freedoms, the Canadian justice system was rather discriminatory and biased against the said social groups. However, the entrenchment of the Charter coincided with major shifts in societal paradigms and the general relief of stigmatization towards births out of wedlock. In the 1990s, the Supreme Court recognized different-sex partners’ spousal rights to their child (Bala and Leckey 23).

For instance, Ontario Family Law Act gives a gender-neutral definition to the term spouse: “either of two persons who are married to each other (“Family Law Act, R.S.O. 1990, c. F.3, para. 10).” Lastly, in the early 2000s, following the so-called generous interpretation of the rights under the Charter, the definition of spouse was expanded to include same-sex couples. Again, the Charter’s provisions were in line with the more accepting attitude towards homosexuality in society. On second thought, according to the authors, it was the last time the Charter caused such an extension of rights.

Challenges of Applying the Charter in Family Courts

The necessity to operate on the values provided in the Charter often leads to confusion in family courts. The Charter’s most significant provisions – Section 7 and Section 14 – aimed at protecting an individual from excessive state interference. However, in family courts, a family is seen as a collectivity that is confronted with an intervention both from the state and the court. Lawyers seem to be struggling with balancing children’s rights against parents’ rights and or the rights of one spouse against the rights of the other (Bala and Thomson 24). Moreover, many legal practitioners find the system rather child-oriented, which calls for the prioritization of children’s rights. However, it is not always definite whether children are fully capable of appreciating and exercising their rights.

Motherisk and Section 7 of the Charter

Even though there is evidence that the Charter might have been losing its relevance in the field of family law, recent events of the 2010s may have opened up a dialogue as to how its provisions may be applied again. Motherisk was a program launched by the Hospital of Sick Kids in Toronto, Ontario in 1985, which also runs a laboratory. The laboratory was used frequently by the justice system for drug and alcohol testing to establish whether some parents were fit for their role and capable of raising children.

In 2015, it was found out that the laboratory-generated an indefinite number of false reports, thus, allowing the authorities to accuse innocent people of substance abuse and break families. Bala and Thomson claim that the cases of false accusations should be assessed under Section 7 of the Charter which confirms people’s rights to liberty and security (6). These rights are equally applicable to parents and children: many parents were tested against their will and children were denied the right to stay in their families.


Canada has a long history of children’s welfare and family law, which can be traced back to the nineteenth century. It is argued that the entrenchment of the Charter of Rights and Freedoms had a significant effect on family law and children’s welfare. Some studies claim that despite its unambiguous relevance right after the enactment in 1982, for the three decades, the importance of the Charter and its practical impact has been on the decline. In family courts, lawyers struggle with the prescribed generous interpretation of the Charter’s provisions. However, recent controversies such as the case of Motherisk proved the applicability of the Charter’s values.

Works Cited

Bala, Nicholas and Jane Thomson. “Motherisk and Charter Orders for Experts for Parents in Child Welfare Cases.” Canadian Family Law Quarterly, vol. 35, no. 199, 2016, pp. 1-7.

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Bala, Nicholas and Robert Leckey. “Family Law and the Charter’s First 30 Years: An Impact Delayed, Deep, and Declining, but Lasting.” Canadian Family Law Quarterly, vol. 32, no. 1, 2013, pp. 21-52.

Constitution Act, 1982.Government of Canada. 2019. Web.

Family Law Act, R.S.O. 1990, c. F.3.Queen’s Printer for Ontario. 2017. Web.

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