Contextualizing the Best Interests of the Child: Justice L'Heureux-Dube's Approach to Child Custody and Access Law

• Author: Susan B. Boyd
• Pages: 165-187

Contextualizing

the

Best Interests

of the

Child:

Justice L'Heureux-Dube's Approach

to

Child

Custody

and

Access

Law

SUSAN

B.

BOYD

By

infusing

family

law

with

the

social

context,

we

ensure

that

the

perspective

and

interests

of all the

parties

involved,

men,

women

and

children,

are

taken

into

account.1

Introduction

When Claire L'Heureux-Dube

was

appointed

to the

Supreme Court

of

Canada

in

1987,1

knew little about her, despite

the

fact

that

she had

been

on

the

Quebec Court

of

Appeal since 1979

and the

Cour

superieure

du

Quebec

since 1973.

This

ignorance

is, no

doubt,

directly attributable

to a

myopic

Anglo-Canadian focus.

It was

Marlene Cano,

a

feminist

family

law

professor

in

Droit Civil

at the

University

of

Ottawa

who

died young

of

breast cancer

in

1994,

who

first

pointed

out to me the

significance

of

Justice L'Heureux-

Dube's innovative approach

to

family

law

when

she was on the

Quebec Court

of

Appeal. Cano published

an

article making this point

in

1991.2

Marlene

Cano's

article

was

written partly

in

response

to

suggestions

that Justice L'Heureux-Dube took

a

conservative

(less

interventionist)

approach

to the

Canadian Charter

of

Rights

and

Freedoms

in

comparison with

that

of

other Supreme Court justices,

for

instance, Justices Bertha Wilson

and

Antonio Lamer. Cano's response

was to

complicate

the

analysis

by

observing

that

a

non-interventionist approach

to the

Charter

did not

necessarily corre-

late

with

a

conservative

approach.

Cano

found

that,

in

fact,

Justice

L'Heureux-Dube

adopted

an

approach that addressed social injustices

and

inequalities, that

was

multidisciplinary,

and

that rejected

an

individualistic

focus

in

favour

of a

focus

on

collective

interests—hardly

a

conservative

165

Ten

166

ADDING FEMINISM

TO LAW

approach,

and

arguably

an

innovative one.

In the

context

of

family

law, this

approach meant that

in

matrimonial conflicts,

it was not

only individual

interests that were relevant,

the

impact

of

conflicts

on the

whole

family

and

on the

larger society

had

also

to be

considered.

Justice

L'Heureux-Dube

felt

that

the

state should play

a

role

in

ensuring

the

interests

of the

family

and its

stability,

and

thus society's

interest.3

Cano pointed

out

that

Justice

L'Heureux-

Dube's

family

law

work typically looked

to the

social context within which

inequalities

are

found, particularly economic inequalities.

In

relation

to

chil-

dren, Cano found that Justice L'Heureux-Dube

was

preoccupied with their

best interests

and

often

suggested that

the

best interests

of

children were

not

sufficiently

taken

into

account

by the

courts.4

In

determining what those

interests

were,

she

took

a

multidisciplinary approach,

and

also looked

to

social

science expertise

for

guidance.

Cano suggested that Justice L'Heureux-Dube's decisions

affirmed

that

the

discretionary power that judges possess under

family

legislation empow-

ers

them

to

think

about

formal

equality

in

relation

to

social realities, with

the

goal

of

ensuring substantive equality

for

disadvantaged

groups.5

Interestingly,

however,

Cano also pointed

out

that Justice L'Heureux-Dube typically limit-

ed her

interventions

as an

appellate judge,

often

endorsing

the

opinion

of the

judge

who had the

opportunity

to

hear

the

evidence.6

She was

not, then,

a

particularly interventionist judge

in

terms

of

second-guessing

the

decisions

of

judges

in the

lower courts.

At

the

time

Marlene

Cano wrote,

(1991),

Justice L'Heureux-Dube's

most

significant

Supreme Court

of

Canada decisions

in

relation

to

child cus-

tody

and

access issues

at

separation

and

divorce

had not yet

been rendered.

This article explores

the

extent

to

which Cano's 1991 assessment

of the

jurisprudence

of

Justice L'Heureux-Dube holds water

after

another decade

of

work

on the

Supreme Court

of

Canada.

Before

discussing

the key

decisions

related

to the

child custody

and

access law, however,

I

shall review

her

contri-

butions

to

scholarly discussions

of the

best interests

of

children.

Extra-Judicial

Discourse

Unlike many judges, Justice L'Heureux-Dube

has

written

and

published pro-

lifically,

including

in the

field

of

family

law.

She has

also been

an

honorary

member

and an

active participant

in the

conferences

of the

International