6. Shifting Patterns in Nineteenth-Century Canadian Custody Law

Abstract

During the nineteenth century, Canadian custody law evolved from a law of purely paternal rights to a system that increasingly granted child custody to mothers. Changes in custody law correlated with industrialization, changes in perception of women's role in the family, and the perception of childhood as a distinctive life stage when nurturing was critical. Early judges struggled to settle custody disputes where fathers had legal rights over children, but abused or neglected their children. In 1855, the United Canadas followed English example and passed an Act allowing courts the discretion to grant custody to non-adulterous mothers. Courts were polarized as to whether the statute left fathers' rights entirely intact, or whether it instilled a maternal right to child custody that must always be considered. Canadian judges were cautious in expanding mothers' custody rights, either because of their tendency to follow British precedent or personal discomfort over increased maternal custody rights. By contrast, Canada's legislature sought to bring women's legal position in line with their changing role in industrialized families. The courts belatedly began to grant mothers increasing rights to child custody from 1886.