KV. v. TE

What role should race play in decisions regarding custody of children of mixed race relationships

File No: 27897

IN THE SUPREME COURT OF CANADA

(ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL)

BETWEEN:

KIMBERLY VAN DE PERRE

Appellant

- and -

THEODORE EDWARDS and

VALERIE COOPER EDWARDS

Respondents

- and -

AFRICAN CANADIAN LEGAL CLINIC

THE ASSOCIATION OF BLACK SOCIAL WORKERS

AND THE JAMAICAN CANADIAN ASSOCIATION

Interveners

_______________________________________________________________________________

FACTUM OF THE INTERVENERS

AFRICAN CANADIAN LEGAL CLINIC SOUTH OTTAWA COMMUNITY

330 Bay Street, Suite 306 LEGAL SERVICES

Toronto, Ontario 1355 Bank Street, Suite 406

M5H 2S8 Ottawa, Ontario

K1H 8K7

Tel: (416) 214-4747 Tel: (613) 733-0140

Fax: (416) 214-4748 Fax: (613) 733-0401

Sheena Scott and Marie Chen Chantal Tie

Solicitors for the Interveners Ottawa Agents for the Interveners

BAYSHORE LAW GROUP OLSER, HOSKIN & HARCOURT

818 - 1550 Alberni Street 1550 - 50 O'Connor Street

Vancouver, British Columbia Ottawa, Ontario

V5G 1A5 K1P 6L2

Tel: (604) 669-8900 Tel: (613) 235-7234

Fax: (604) 669-8850 Fax (613) 235-2867

Kenneth B. Oliver Patricia J. Wilson

Steven N. Mansfield

Solicitors for the Appellant Ottawa Agents for the Appellant

MAXWELL, SCHUMANN & COMPANY LANG MICHENER

900 Helmcken Street Barristers and Solicitors

Vancouver, British Columbia 300 - 50 O'Connor Street

V6Z 1B3 Ottawa, Ontario K1P 6L2

Tel: (604) 669-4912 Tel: (613) 232-7171

Fax: (604) 662-3975 Fax: (613) 231-3191

F. Ean Maxwell, Q.C. Barbara Sinclair

Barbara E. Bulmer

Solicitor for the Respondents Ottawa Agent for the Respondents

(i)

TABLE OF CONTENTS

Description Page

PART I STATEMENT OF FACTS 1

PART II ISSUES 1

PART III LEGAL ARGUMENT 1

PART IV ORDER REQUESTED 39

PART V TABLE OF AUTHORITIES 40

STATUTES AND INTERNATIONAL

INSTRUMENTS RELIED ON

Extracts: UN Convention on the Rights of the Child International Convention On the Elimination of All Forms of Racial Discrimination

TAB

APPENDIX I Table of Provincial and Territorial Custody

Legislation 1

APPENDIX II Table of Provincial and Territorial Child Welfare 2

Legislation

Part I: Facts

1. The Interveners have been granted standing in this appeal to address issues relating to equality and best interests of African Canadian biracial children in custody and access disputes. Elijah is a child of mixed African American and Caucasian parentage.

Part II: Issues

2. The issue to be addressed by the Interveners is: What role should race play in decisions regarding custody of children of mixed race relationships?

Part III

3. The Interveners submit that from both family law and Constitutional law perspectives, race is an important or "major" factor, which must be given explicit consideration and considerable weight in custody and access disputes. The Interveners submit that race, as in racialization, is of great significance in terms of the developmental well-being of biracial children with respect to coping with the experience of racism and identity development. The appropriate approach, is a child-centered one, which, from the perspective of the African Canadian child, looks at what is in the best interests of the child. For the Interveners, the terms "African Canadian" and "racialized" encompass, the biracial child of Black and white parents. For the purposes of this factum, racialized groups are those who have historically been burdened with societally imposed racism and racial distinctions and do not include the "dominant" white group.

Henry, Francis, The Colour of Democracy; Racism in Canada (Toronto: 1995

Harcourt Brace & Company, Canada, at 3,4

4. Race and culture have been used inter-changeably by the Courts. The Interveners submit that race is distinct from culture but that racial heritage can be an integral part of racial identity, and one that demands nurturance in order to offset the impact of racism. The significance of race is the result of racialization through the social construct of race. Race, which exposes one to racialization is an immutable characteristic. Culture, on the other hand, is ongoing and learned. Both race and culture should be addressed in the context of a race-conscious society to fully appreciate their significance. Culture (or heritage) in isolation of race and racism and oppression does not hold the same significance as it does, in a racialized context. The distinction between race and ethnicity also warrants clarification. Both encompass the notion of distinctiveness in society, however, "[e]thnicity involves the notion of blood, kinship, a common sense of belonging, and often a common geographic or national origin. It refers to the social origins of groups, whereas race refers to the biological status of groups and the social construction of racism that often follows."

Henry, supra, at 40. Francis, V., "In the Application of the "Best Interests of the Child, Test in Adoption, There must be a place for the Consideration of Race" (Ottawa: NAWL, 1994) at 3-10 Carasco,E, "Race and Child Custody in Canada: Its Relevance and Role"(1999)16 Can.J.Fam. L.

5. The Interveners submit that to focus on the importance of the respective cultures of the parents is a red herring, which draws attention to the needs of the parents and not the child. It is race, in the sense of racialization and the impact thereof that holds significance for the child. The social construct of race, with its attendant prejudices, discrimination and impact on life chances has instilled in African Canadians the need for strong racial pride in racial heritage as a facet of racial identity, in order to counter externalized and internalized racism and facilitate healthy development.

Francis, V. supra

Benton, W. "The Evolution of Afrikan Consciousness: The Effects of R.A.C.I.S.M. on Afrikans in the Diaspora (Halifax: Unpublished Thesis, Dalhousie University, 1997) at 47-70

6. Pursuant to Statute, principles of Equity, and international, and family law norms, the operating test in custody and access cases is the best interests of the child. This test has remained pointedly broad and flexible in order to accommodate the interests of the particular child.

Young v. Young, [1993] 4 S.C.R. 3 at 74-77

7. In the family law context, the pertinent question is to what extent is race a relevant factor to the best interests of the particular child. Family law jurisprudence has tended to approach this question absent an equality analysis. While the Interveners will address the family law statutes and jurisprudence, the arguments will be made largely in the context of a section 15 framework. The Interveners submit that pursuant to a family law analysis, absent Charter considerations, race is a mandatory consideration under the best interests test.
8. From an equality perspective, the Interveners are asking this Honourable Court to interpret the best interests of the child test in a manner consistent with section 15 of the Charter: that is, in a manner which acknowledges that to ignore and minimize race as a major or important factor to be given explicit consideration and considerable weight, in custody and access disputes, is to discriminate against racialized children. Hence, it is submitted, such consideration and considerable weight must be "read in" to the best interests test in order to achieve compliance with section 15. Given the open-endedness of the best interests test and the broad discretion available to the Courts, the Interveners submit that it is incumbent on the Courts to exercise that discretion in a manner consistent with the Charter.

Slaight Communications v. Davidson [1989] 1 S.C.R 1038 at 1056-1057

9. The importance of utilizing a section 15 equality perspective in the family law context has been acknowledged: "To deny the existence of the equality component in family law is to trivialize the very inequalities suffered largely by women and children". Within this framework, the existence of stereotypes (including those of the judiciary) and the need to move away from minimizing or ignoring factors relevant to vulnerable groups are significant indicators of the need to employ an equality analysis in order to achieve true justice in family law dispositions.

The Honorable Madame Justice L'Heureux-Dubé "Making Equality Work in Family Law", (1997) 14 Canadian Journal of Family Law 103-127.

10. Section 15 of the Charter is concerned with inequities in the law, that impugn human dignity. Section 15 provides that:

15.(1) Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

11. The Question for the Court from a section 15 standpoint is:

1. Does an approach which fails to explicitly consider race as a "major" or important factor, to be given considerable weight fail to take into account the already disadvantaged position of racialized, African Canadian children of Black and white parentage within Canadian Society, resulting in substantively differential treatment between these racialized children and other children, on the basis of race, a ground protected under the Charter.

1. 1. Does the differential treatment have the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of society, equally deserving of respect and consideration.

Law v. Canada [1999] 1 S.C.R. 497 at 549

1. The second branch of the inquiry is concerned with whether or not the purpose of section 15: to protect human dignity, is infringed by the action in question. Human dignity, and the impingement thereof, as central to the section 15 inquiry "is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society…."

Justice La Forest, as cited in Law, supra , at 525; Law, supra at 530

2. Section 15 Charter analysis is a comparative analysis and thus identification of the comparator group is essential. In the case of biracial children, who are racialized children, the comparator group is the group currently receiving full benefit of the law, non-racialized children. For the latter group, race is simply not an issue as it is not a facet of who they are.

Law, supra at 532, 532

3. The entire context of the section 15 exercise is infused with the perspective and traits of the claimant. The Court must also look to "the larger context of the legislation in question and society’s past and present treatment of the claimant and of other persons or groups with similar circumstances". In the final analysis, the appropriate question is:

Whether, a reasonable, dispassionate African Canadian (biracial) child, fully apprised of the circumstances of biracial children in custody and access disputes, possessed of similar attributes and in circumstances similar to those of the subject/claimant, who is informed of the contextual factors, including the nature and history of racism in Canada, would find that the approach has the effect of demeaning his or her dignity.

Law, supra at 532, 533, 534,550

R. v S. (R.D.), [1997] 3 S.C.R. 484 at 507, 508, 509

4. Important to this perspective is whether or not the process in question "fails to take into account a claimant’s actual situation" as opposed to accommodating the "claimant’s needs, capacities and circumstances". Contextual factors such as pre-existing disadvantage, historical and current stereotyping, prejudice and discrimination, the impact of the process, the nature of the interest affected including values incorporated into Canadian society via international human rights obligations and the legislative context are integral to the section 15 test. A thorough examination of the "social reality" of the racialized group is warranted.

Law, supra at 534, 535, 538

Baker v. Minister of Immigration and Citizenship [1999] 2 S.C.R. 817 Lovelace v. Ontario [2000] 1 S.C.R. 951 at para 4

Legislative Context

5. The case at bar was decided pursuant to the Family Relations Act of British Columbia which provides that "paramount consideration [be given] to the best interests of the child" and that in assessing those interests, certain factors must be considered and given "emphasis" "according to the child’s needs and circumstances". The factors include "the health and emotional well being of the child including any special needs for care". Race and culture are not listed. The B.C. Court of Appeal found that although race is not specifically referred to in the Family Relations Act, race is relevant to the "paramount consideration of the best interests of the child, in particular, the health and well being of the child."

K.V. v. T.E. [2000] B.C.J. No. 491 (B.C.C.A) at para 48

6. Although this case relates to the B.C. legislation, the Interveners submit that as this case involves an examination of what is in the best interests of a racialized child, it has broad implications, beyond British Columbia. The Divorce Act incorporates the best interests of the child as the "only" consideration, as determined "by reference to the conditions, means, needs and other circumstances of the child". The Divorce Act specifically references the principle that children should have maximum contact with both parents and mandates the Court to take into account parental willingness to facilitate contact with the other parent.

Divorce Act, S.C. 1985 as amended, c. 3, s. 16(8),(10)

7. For the most part provincial custody and access legislation, like that of British Columbia, relies on the best interests of the child test or a variant thereof (welfare of the child, interests and rights of the child). The majority of the statutes list certain factors that must be considered. Only New Brunswick specifically mentions "the child’s cultural and religious heritage". None of the provinces specifically refer to race or racial heritage. The Interveners submit that the language in each province is sufficiently broad to include within it, mandatory consideration of racial heritage under the rubric of "the best interests of the child", "emotional well-being", "culture" or otherwise as the applicable statute permits.

Table of Child Custody Legislation, Appendix, I, Tab 1 (For example, in Ontario, the Yukon, Newfoundland the court must consider "all the needs and circumstances of the child including..." but not specifically limited to the tabulated list. Like British Columbia, other provinces such as Saskatchewan, New Brunswick and Quebec refer to a general/ best child’s interests test, followed by reference to the emotional, psychological and social needs of the child (among other factors). The PEI, Manitoba, Alberta and Nova Scotia provisions leave the factors to be considered under the general "best interests"/welfare of the child rubric, wide open.)

8. In their "best interests of the child" test, all provincial and territorial child welfare legislation in Canada (except for Yukon, which does not elaborate on its best interests test) list as relevant factors: the mental/psychological and emotional needs of a child, and the child’s cultural background/heritage. Racial heritage is explicitly recognized as a relevant factor in determining the best interests of a child for child protection and/or adoption purposes in four provinces:

British Columbia, Manitoba, Newfoundland, and Nova Scotia.

Table of Child Welfare Legislation, Appendix, II, Tab 2

9. In addition to the statutory authority vested in the Courts, Superior Courts have inherent parens patriae jurisdiction. It is open to Superior Courts when deciding custody and access matters, if necessary, to rely on there parens patriae power. The Interveners submit, however, that the various tests are broad enough so as not to warrant the need to resort to the inherent power of the Court.

Domestic Law Context

10. Race has been considered as a factor relevant to an assessment of the best interests of the child by Canadian courts in custody and access proceedings. However, the approach taken by the courts as to the weight and importance to be attached to race has not been consistent. As well, there has been little discussion as to the nature and importance of race with respect to the development of a child.
11. In Racine v. Woods, an inter-racial custody case between an aboriginal child's mother and the prospective adoptive parents who were Caucasian, Wilson J. found that "the significance of cultural background and heritage as opposed to bonding abates over time. The closer the bond that develops with the prospective adoptive parents the less important the racial element becomes". Wilson J. concluded that the trial judge had weighed all factors including the child's race without error. In D.H. v. H.M., an inter-racial custody case between the mother's adoptive parents who were Caucasian and the child's natural grandfather who was Aboriginal, this Court reached a similar conclusion with respect to the trial judge's consideration of the child's Aboriginal background.

Racine v. Woods, [1983] 2 S.C.R. 173

D.H. v. H.M., [1999] 1 S.C.R. 761

Darling v. Chung [1988] O.J. No. 1334 (Sup. Ct. Ont.)

White v. Matthews [1997] N.S.J. No.604 (N.S. Fam. Ct.)

Anderson v. Williams [1998] B.C.J. No. 1428 (B.C.S.C.)

1. Some lower courts while attributing more importance and weight to a child's racial heritage, have done so without much discussion of its significance.

Von Bezold v. Brideau, [1986] P.E.I.J. No.3 (P.E.I.S.C.) "dual heritage is, ….. , of particular value to any growing child."

Maier v. Chiao-Maier, [1990] S.J. No. 531 (Sask. Ct. Q.B.)

2. Other lower court decisions, in addition to giving strong weight to race, have elaborated on its importance with respect to biracial children and have concluded that the child's best interests would be met by awarding custody to the parent most able to provide for this aspect of the child's needs, usually coupled with liberal access to the other parent.

Camba v. Sparks, (1993), 124 N.S.R. (2d) 321 (N.S. Fam. Ct.)

Ffrench v. Ffrench (1994), 134 N.S.R. (2d) 241 (N.S.S.C.)

Hennebohm v. Hennebohm, (1995) 149 N.S.R. (2d) 125 (N.S. Fam. Ct.)

3. In Camba v. Sparks, a custody dispute between a French-Canadian father and an African-Canadian mother, the Nova Scotia Family Court found that race, culture and language were important long range issues and that in the Canadian context the biracial child's Black background was a major factor, especially when the child would encounter discrimination as he grew older and would require help in coping with discrimination from a person with first hand experience. The Court found the child's mother most likely to support and encourage the mixed racial and multicultural background of the child.

Camba v. Sparks, supra

4. In Ffrench v. Ffrench, a custody case involving a Caucasian mother and an African Canadian father, the Nova Scotia Supreme Court addressed the issue of the racial development of biracial children both in terms of "cultural development" and in equipping them to deal with the racial discrimination which they would inevitably encounter. The Court stated that the best interests of a child included a recognition of the strong desirability of children who are to be perceived as Black in having an opportunity to develop self esteem and identity by continuing contact with the parent of the race and cultural background they will be perceived to be a part of. The Court concluded that on the facts of the case, the weight to be given to the factors of race and culture were a major consideration in the determination of what was in the best interests of the child and awarded custody to the mother because she had a clear awareness of the need of her children to develop self esteem and identity by continuing contact with their African Canadian racial and cultural background.

Ffrench v. Ffrench, supra at para. 83

5. In Hennebohm v. Hennebohm, a custody dispute involving an African-American mother and a Caucasian father, the Nova Scotia Family Court considered the importance of race and culture in the raising of a biracial child. The mother who had been primarily responsible for parenting in the past had moved to Ontario from Nova Scotia where the father remained. The Court while commending the father for his awareness of the particular complexity of raising a biracial child and his plans to expose his child to his African Canadian heritage, found that he had failed to demonstrate a profound understanding of the hurt and pain of racial discrimination on a child (which his daughter would inevitably encounter in Nova Scotia) and the manner in which he would handle such situations. The Court found that the mother had stressed the importance of her daughter observing her as a role model, just as she had benefited from positive role modeling. As well, she was deeply aware of the negative and discriminatory encounters which her daughter would experience. The Court concluded that as the mother had experienced these difficulties, she would more effectively provide the child with the nurturance and confidence to face racism and discrimination and awarded custody to the mother.

Hennebohm v. Hennebohm, supra at para.26

6. Some Canadian courts have utilized a "race-matching" approach as in Kassel v. Louie where the British Columbia Supreme Court upheld a trial judge's order to grant primary residence with the child's Chinese father. While referring to other factors, the trial judge put considerable weight on the fact that the child looked Chinese (from photographs) and as the only male heir in the family, was very important to the life of the extended family. The judge also considered that in his father's home, the child would not be the "odd child out", that is of Chinese appearance in a white family.

Kassel v. Louie, [2000] 11 R.F.L (5th) 144

Hayre v. Hayre (1975) 21 R.F.L. 191 (B.C.C.A.); (1993), 11 R.F.L. 188 (B.C.S.C.)

7. The existence of racism of extended family members has played a role as in Drummond v. Lane wherein the Court queried whether given the racist attitudes of the extended family, the father ought reasonably exercise the access he was awarded.

Drummond v. Lane 76 N.S.R. (2nd) 430

International Jurisprudence Context

8. The case law in the United States on the role of race in child custody proceedings is relatively scarce. In the leading case of Palmore v. Sidoti, a custody modification dispute, the United States Supreme Court in overturning the trial court's decision to transfer custody from the child's natural mother to the child's natural father (both white) on the basis of societal prejudice resulting from the mother's re-marriage to an African American, determined that racial prejudice could not justify the removal of a child from a parent who had previously been found appropriate to have custody of the child.

Palmore v. Sidoti, 466 U.S. 429 (1984), at 433; Holt v. Chenault, 722 S.W. 2d 897 (Ky. 1987)

9. In Jones v. Jones, a custody case involving biracial children of a Native father and a white mother, the Supreme Court of South Dakota rejected the mother's argument that Palmore prevented the consideration of race by the trial court in determining the custody of the children. The Court ruled that race as it relates to the child's ethnic heritage and ability of the parent to expose the child to that heritage, is a proper consideration under the best interests test.

Jones v. Jones, 542 N.W.2d 119 1996, at 122-124

10. Australian case law recognizes that "cultural" factors merit consideration in deciding the welfare of children. In the Matter of B and R, an Aboriginal mother appealed a trial court=s decision awarding custody of her child from a long-term relationship with a white Australian male to the father. The trial judge had acknowledged the importance of culture in general terms of multiculturalism but would not allow evidence regarding the importance of the child’s Aboriginality and the trauma of being raised without exposure to that heritage, into evidence. Adopting a substantive equality approach, the Australian appellate court overruled the trial judge=s approach as

entirely inconsistent with that doctrine. It offends against it by treating a group of people with less respect than would be accorded others. By failing to recognise these uniquely Aboriginal experiences, its effect is to administer something less than equal justice to Aboriginal people. By pretending that these experiences are what they are - tragic, relevant and unique - this approach treats Aboriginal people as if they were not who they are. It recognizes less than their complete identity and humanity. That is an effect which this court finds objectionable, and the approach taken is one which we reject.

In the Matter of B and R, 19 Fam LR 594 (Family Court of Australia, Sept. 1995) at paras 22, 135, 145, 144, 120 The Court also commented on the appointment of cultural advisers to the Court.

11. Regarding the relevance of race to the biracial child, reference may be had to the dissenting judgment of Chief Justice Evatt in the custody case of In the Marriage of Goudge wherein he recognized the importance of Aboriginal heritage, the existence of discrimination and the need for respect for these important factors by the non-racialized parent and his partner.

In the Marriage of Goudge (1984) 54 A.L.R. 514 at para. 11, 12

12. The Scottish judgement of AH (Re), which involved petitions for adoption by a Scottish couple of two Asian (Punjabi) children, who had already spent some five years in the couple’s custody, recognizes the importance of the awareness of heritage to children.

The sense of personal identity was incomplete and that this, in turn, could result in severe emotional disturbance at the stage of adolescence and, what was more, in a much reduced ability to deal with racial prejudice if and when encountered in later life.

AH (Re), [1995] Scott. J. No. 54 at para 11

In deciding that the petitioners should be able to proceed with the adoption, Lord Marnoch noted that the petitioners had been cognizant of the necessity of keeping the children in touch with their cultural heritage and indeed had made all possible efforts to effect that goal.

A. H., supra at para, 13

International Human Rights Context

13. The principles of non-discrimination are reinforced by the International Convention on the Elimination of All Forms of Racial Discrimination. The principle that the best interests of the child shall be a primary consideration and the principle of maximum contact with both parents and the right to an identity are reinforced by the United Nations Convention on the Rights of the Child.

UN Convention on the Rights of the Child, UN Doc A/RES/44/25, 1989 at articles 2, 3,8, 9.3; Young, supra at 75

International Covenant on the Elimination of All Forms of Racial Discrimination, U.N.T.S No. 195 (1969)

Historical and Social Context

14. It is now accepted that race is a social construct. There are no biological differences between the so called, races. The evolution of the social construct of race is tied to the history of Africans and their exploitation. The history of the African Canadian in Canada is one of racism and oppression. It is inextricably linked to the history and experiences of persons of African descent in the United States and in Europe. Social and political movements have involved science in proving the inferiority of certain races and pitting the races against each other. African Canadians have been seen as being at the bottom of the racial hierarchy of mental worth.

Lopez, I "The Social Construction of Race" in Delgado, ed, Critical Race Theory: The Cutting Edge (Philadelphia: Temple University Press 1995) at 41

Backhouse, Colour Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto: University of Toronto Press 1999) at 5

Reference may also be had to: Re Eskimos, [1939] 80 S.C.R. 104 as cited in Backhouse, supra at 34-55 wherein the Supreme Court of Canada found itself in the middle of a battle, based on phenotypic distinctions and biological theories about whether or not Eskimos were Indians. The Court heard evidence regarding phenotypic differences, skull size and serentology. The Court did not however, render its decision on the basis of the biological evidence, rather, the Court relied on the social history and legislative intent in finding that Eskimos were "Indians".

15. Slavery, which represented the ultimate disruption and dislocation in the lives of Africans, is a critical starting point when examining the long-standing relevance of race as colour in society.

Economics, power and privilege all played a role in creating and perpetuating slavery. Stereotypes and justifications were necessary in order to keep the slave in the position of subservience. Slavery, as it was known in the United States, was also legally sanctioned and practiced in Canada until the early 19th century. Slaves in Canada were bought and sold at auctions, along with clothing and furniture. They were property and their offspring were born into slavery. Prominent church officials and influential families owned slaves.

Walker, "Race", Rights and the Law in the Supreme Court of Canada (Waterloo: Wilfred Laurier University Press: 1997) at 124, 137-139

Backhouse, supra at 257, 258

16. An important facet of slavery was the reproductive treatment of men, women and children by their white owners. The women were used, and raped as a means of reproducing more slaves. The biracial child of the Black female slave, was deemed to be Black and thus born into slavery. The dominant group did not accept the biracial child. White men could force themselves on Black women with economic advantage. Black men were also used as "studs" and forced to sleep with female slaves in order to produce more slaves.

Hamilton, S. "A Survey of Early Black Women in Nova Scotia in Bristow et. al, eds., We’re Rooted Here and They Can’t Pull Us Up: Essays in African Women’s History (Toronto: University of Toronto Press, 1994) at 15.

Backhouse, supra at 244 Roberts, D. "Killing the Black Body, (New York: Vintage Books) 1997

17. The Black male slave in the United States was harshly treated and even lynched as a means of disempowering him and of demonstrating the power of the white male. Often, it was claimed that the Black man had raped a white woman.

Davis, A.Y., Women, Race & Class, (New York: Vintage Books, 1983)

18. While the Canadian context includes the promise of freedom to those still facing slavery in the United States, it also includes the substandard treatment, land and employment opportunities with which African Canadians settling in Canada were met.

Backhouse, supra at 250-252;Walker, supra at 124-137; Henry, supra at 64-67;

Stasiulus, D. & Jhappan, R. "The Fractitious Politics of a Settler Society: Canada" in D. Stasiulus & Nira Yuval-Davis, eds., Unsettling Settler Societies: Articulation of Gender, Race, Ethnicity and Class (London: Sage Publications, 1995) at 108

19. African Canadian children experienced segregation in Canadian schools-both under statute and in practice. Restrictive covenants and practices that upheld restrictions prohibiting the sale of land to African Canadians and other racialized groups were common. African Canadians were in practice, barred from white establishments. In 1940, the Supreme Court of Canada, upheld the exclusion of African Canadians by tavern owners on the basis of colour, in the interests of freedom of commerce. Race-based segregation was legally enforceable in Canada.

Christie v. York Corporation,[1940] S.C.R. 139 as cited in

Walker, supra at 250-252, footnotes at 414, 415;Backhouse, supra at 124-143, 158-173

20. Canadian society fostered a white settler society. Canadian Immigration policy, practice, legislation and dialogue followed race and colour lines -both overtly and in a more subtle fashion. When the labour supply was necessary, Black and in particular, West Indian women were permitted to come to Canada to work as domestics. Yet the "need for" these women, and their status depended on economic whims, government policy and practice.

Henry, supra at 72-78

Walker, supra at 246-253, 262-274, 282, 285, 291-296

21. Inter-racial issues and the treatment of mixed race individuals had their own place within the Canadian historical context. Census data was based on race and census-takers received their instructions along colour lines:

The whites are of course, the Caucasian race, the reds are the American Indian, the blacks are the African or Negro, and the yellows are the Mongolian (Japanese and Chinese) But only pure whites will be classed as whites; the children begotten of marriages between whites and any other races will be classed as red, black or yellow, as the case may be, irrespective of the degree of colour. Backhouse, citing Fourth Census of Canada, 1901, Vol. 1. supra, at 1 (emphasis added)

22. Thus, while Canada did not overtly espouse the "one-drop-of blood and you are Black" rule, which was legislated in numerous States, the government adopted this approach. The "one drop rule" defines as Black a person with as little as a single drop of "Black Blood". This notion derived from the belief that each race had its own blood type, which was correlated with physical appearance and social behavior. The only group to which the rule applied was people of African descent. The birth of a mixed race child between a Black woman and a White man (who usually owned her) meant that the child inherited the mother’s subordinate status.

Wright, L., "One Drop of Blood," in The New Yorker, July 1994

Cavanaugh-O'Keefe, J. "The Roots of Racism and Abortion: An Exploration of Eugenics" Pollock,G, "The Role of Racism in Child Custody Decisions Between Natural Parents or Biracial Children" [1997] Vol. XXIII, Review of Law and Social Change.603 at 606-609

23. Anti-miscegenation laws were prevalent in the United States. Thirty states passed anti-miscegenation laws that stayed on the books until the advent of the Civil Rights Movement. Of these, 16 kept their laws on the books until the Supreme Court threw them out in 1967. Another 14 states passed anti-miscegenation laws, but repealed them in the 1950s or 1960s. Furthermore, the Virginia Racial Integrity Act of 1924 made it unlawful for any white person to marry anyone save a white person, or a person with no other admixture of blood than white and American Indian. Penalties for breaking the law included confinement in a penitentiary for not less than one, or more than five years. Judges continued to defend anti-miscegenation laws for decades, citing their
    effectiveness in "preserving the racial integrity of citizens," "preventing the corruption of blood," "a mongrel breed of citizens" and "the obliteration of racial pride

    ."

Cavanaugh, supra.

24. While Canada did not adopt anti-miscegenation laws, inter-racial unions were discouraged on all fronts. The Ku Klux Klan is part of the historical fabric of Canadian society. It infiltrated a number of provinces including British Columbia and Ontario. One of the dominant themes of the KKK was prosthelatizing and direct action, targeted against the "polluting" of the white race by interracial unions with African Canadians (and others). In 1930, in Oakville, Ontario, the KKK intervened in the case of Ira Johnson, a man described as a "negro", who was living with and had hoped to marry a white woman. The KKK abducted Ms. Jones and handed her over to her mother. The KKK then abducted Mr. Johnson and burned a cross on his lawn and warned him away from white women with death threats.

Backhouse, supra at 173-180

25. While the Courts and the media disapproved of the methods used by the KKK, implicitly and explicitly, the aim to keep the races apart was lauded and/or accepted. Further, within the context of the attention which the case attracted, Ira Johnson who was described as being "nearly white" and having "straight" not curly hair, denied any African Canadian heritage and claimed to be part native Indian. At the end of the day, his marriage to Ms. Jones was covered by the press, as a marriage between an "Indian" and a white woman.

Backhouse, supra at 193-225, 177, 178, 225.

26. The Canadian Courts upheld a law, which prohibited Asians from hiring white women on the grounds that such a law was needed to protect white women from Asian men. A law prohibiting the sale of alcohol to Indians, saw the Courts embroiled in debates about whether or not "half-breeds" were Indians.

Backhouse, supra at 136-172 at 21-27 citing R. v. Howson (1894) 1, Terr. L.R. 492

Walker, supra at 15-56, 102-106 citing Quong Wong v. The King (1914) 39 S.C.R. 440

27. Viola Desmond, who was refused admission to the lower level of seating in 1946 at a Nova Scotia movie theatre because she was "coloured" was from a mixed race family. Ms. Desmond faced challenges as a mixed race individual, in terms of segregation, taunting and the lack of formal recognition of blended families.

Backhouse, supra, at 226-271

28. Certain stereotypes that are closely associated with the exploitation of African Canadians and Americans exist. These stereotypes served and still serve the purpose of keeping the races apart and distinct. Specific bodies were slotted into particular roles, based on colour. In slavery and beyond,

Blacks have been constructed as lazy, ignorant, lascivious and criminal, Whites as industrious, knowledgeable, virtuous, and law abiding. For each negative characteristic ascribed to people of color, an equal but opposite and positive characteristic is imputed to whites.

Lopez , I.F. Haney. "White By Law" in Richard Delgado, ed., Critical Race Theory: The Cutting Edge (Philadelphia: Temple University Press, 1995) at 547-548.

29. Black women were characterized as mammies-faithful domestic servants, matriarchs and "loose" women. White women on the other hand were the purveyors of pure, white European civilization and were encouraged to bear white children. Black men were viewed as being animal like--good only for breeding and physical labour. As "savages", they needed "policing" from the white male. White women needed protection from the Black male who was perceived as being over-sexed and violent. White women who broke taboos and formed partnerships with Black men have a history of being seen as traitors to their race.

Davis, A.Y. "Women, Race, & Class", supra.

Pierson, R. "Introduction" in R. Pierson & N. Chadhuri, eds., Nation, Empire and Colony: Historicizing Gender and Race (Bloomington: Indiana University, 1998) at 1-2.

30. Biracial individuals were sometimes characterized as "lower than blacks because of their mixed nature" and perceived as inherently violent. Biracial individuals were also perceived as a threat to white society as they "challenged racial boundaries through their sometimes racially ambiguous appearance".

Pollock, supra at 608

31. Certain stereotypes, similar to their antecedents, exist today and permeate attitudes about African Canadian families. The single, Black welfare mother who is "loose" has been viewed in these terms:

If she would get married like the rest of us, she would have a male breadwinner to cure her financial woes. If she were motivated enough, she would surmount the educational obstacles before her. If she looked hard enough, she could find a job. And if she were not "unfit" to care for her children she would not have a problem with truancy in her household.

Augustin, N., "Learnfare and Black Motherhood:The Social Construction of Deviance" in Wing(ed.) Critical Race Femininsm: A Reader (New York: New York University Press, 1997) 144-150, citing

32. Ironically, the Black woman if in a subservient role as caregiver to the white child, as a means of assisting a white family is accepted. This stereotype corresponds to the Mammie of the days of slavery. The absent, over-reproductive Black father is another stereotype that is prevalent today. Such men are deemed to care nothing about parenting and only about satisfying their own needs. This stereotype is linked to the stereotype that Black men in general are promiscuous. The Black male athlete is subject to similar and other stereotypes.

Bernard, W., "Survival and Success: As Defined by Black Men…"(Sheffield: Unpublished Thesis, 1995); Hoberman, John, "Darwin’s Athletes:How Sport Has Damaged Black America and Preserved the Myth of Race (New York:Houghton Mifflin Company, 1997) at 100-107

Hill Collins, P. "Black Feminist Thought…"(New York: Routledge, 1991) at 67-90

33. Such individuals are deemed to be inferior parents and inherently incapable of creating and sustaining healthy families. It is submitted that these stereotypes leave little room for interrogating the social and historical conditions that have led to the existence of such circumstances for some African Canadians. When compared to the archetypal, white middle class, nuclear family, the stereotypical African Canadian family does not measure up to the standards set by the privileged group. Consequently, certain practices have occurred which perpetuate these stereotypes and which in turn, impact on African Canadian children. Single Black women were permitted to emigrate to Canada as domestic servants. However, recent deportation practices, which appear to be aimed against women--predominantly from the Caribbean who are working in Canada often illegally have resulted in the prospect of these women being separated from their Canadian born children.

See for example: Baker v. M.C.I, supra; Francis v. M.C.I.(1999), 179 D.L.R. 4th 421 (Ont. C.A). leave to appeal to the Supreme Court of Canada granted: case dismissed for mootness (the Courts have intervened to minimize this risk to some extent)

Bernard, W, supra.

34. African Canadians and in particular, African Canadian males are subject to targeted and over policing. The overrepresentation of African Canadian youth and males in our prison system results in a disproportionate separation of children and youth from their parents and of African Canadian families. African Canadian men, who are landed immigrants and commit even the most minor crimes, face deportation and hence separation from their children.

Gittens, Margaret, David Cole et al., Report of the Commission on Systemic at i-xi

Racism in the Ontario Criminal Justice System, Queen's Printer for Ontario,

December, 1995

Falconer, J. "Colour Profiling: The Ultimate "Just Deserts" (Toronto: 1988 American Bar Association Conference)

35. The Canadian child welfare system has taken many African Canadian children into care. Some of those children are the result of taboo interracial relationships. Some are there because their parents have been deported and some are in care because of drug addiction or poor living conditions. Many African Canadian children are in care because of a system that fails to address poverty and which is based on white middle class norms. Similar difficulties are extant in the United States.

Hutchison, Y. "Multicultural/Multiracial Policy as it relates to Placement of Black Children in Foster Homes" (1994) Vol. 62 (4) The Social Worker , 185-189

McRoy & Hall, "Transracial Adoption, In Whose Best Interest?" in, The Multiracial Experience, Root (ed.). (California: 1996, Sage Publications) 63-97 at 65

36. The placement of African Canadian children in white as opposed to African Canadian homes in order to give them "a better life" or due to the alleged paucity of African Canadian foster homes/adoptive homes has placed African Canadian children and in particular, biracial children at the center of a tug of war. The U.S. Experience of race-matching has been criticized for leaving African American children in limbo for want of African American homes. Yet this practice derived in part from the recognition that Black children should have access to Black role models and teachers within the home who can foster positive identities and address issues of race and racism. The position of the ABSW challenged American social service agencies to recruit African American homes. The Canadian experience has been one of denial of the need to consider race, with children (other than aboriginal children) being placed without explicit consideration of race. The Canadian ABSW takes the position that African Canadian children, including biracial children, should be placed in African Canadian foster and adoptive homes.

Perry, T., "The Transracial Adoption Controversy: An Analysis of Discourse and Subordination (1994) Vol. XXI Review of Law and Social Change 33-108

Association of Black Social Workers, Canada

37. It is respectfully submitted that the prevailing idealization of the nuclear family structure devalues the richness of the extended family arrangements and other-mothering/other-fathering practices that are crucial in Black families which operate within a community consciousness (as opposed to an autonomous, individualized consciousness). Children are highly valued by Africans in the Diaspora and practices such as other-mothering/fathering and reliance on the extended family have been critical in preserving and sustaining family bonds.
38. Mothering plays a crucial role in communal sustainability and self-empowerment for African Canadian Women. Mothering other people’s children is a common communal practice in many African Diasporic communities. This is so in part because of the value of extended kinship ties, friendship ties and the value placed on community participation, but also, because experience has dictated such a necessity. Motherhood/mothering is a means of economic and political survival for African Canadian women, who, through "motherwork", exert influence and power in their daily lives, while passing on self-reliance and self-confidence in their children who come before all else. The children mothered by other mothers include all Black children, regardless of their racial mix. These children include children of friends, of siblings of one’s partner, husband or wife, grandchildren, etc. Thus, despite the prevalent negative stereotypes about Black men ,women, and the Black family, family and children have always been central factors in the lives of African people.

Lawson, E."Black Women’s Mothering, a Historical and Contemporary Perspective", Mothering in the African Diaspora.2000, Vol,2 #2 Journal of the Association of Mothering 21-30

Racism in Canadian Society

39. Despite the debunking of the myth of race, race has become a social reality. The process of racial classifications continues to assign people in different groups with the rights and responsibilities that group membership may entail. Group classifications, even informal ones, are used to justify access to social goods and standing for some and to deny access to others. Therefore, it is accepted that although race has no biological basis, it has real material and social outcomes. There remains a strong connection between phenotypic characteristics, the meanings with which they are imbued and one’s position in society.

Lopez, supra; Henry, supra at 3, 4

40. The existence of widespread racism in Canada has been acknowledged by this Honourable Court. Canadian style racism can be overt or subtle and finds its way into individual, institutional and systemic behaviors and practices. Anti-Black racism is one of the most prevalent types of racism in Canada. Racism is a Canada- wide and United States-wide concern. In addition to overt racism, African Canadians face systemic barriers resulting in exclusion from job advancement, over-representation in the criminal justice system, and streaming from educational avenues and opportunities. Perceptions that African Canadian men are more prone to violent, criminal behaviours are prevalent and have been seen to affect decision-making.

R. v. Williams, [1998]1 S.C.R. 1128

Gittens, M., Cole, D. et al., Report of the Commission on Systemic Racism, supra

Henry, supra at 44-49, 92-95, 107-122, 133-148, 173-190

R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.)

R. v. Wilson (1996), 107 C.C.C. (3d) 87 (Ont. C.A.)

Nature of Interest Affected/ Impact on Disadvantaged Group

41. Custody and access are not parental rights to chattel, but rather, the rights of the child to parental care. In custody and access disputes, the focal point of the determination is:

The entitlement of the child to the best possible arrangements in the circumstances of the parties, taking into consideration the wide spectrum of factors which may affect the child’s physical, spiritual, moral and emotional well-being and the milieu in which the child lives.

Young, supra at 37, 78, 64, 84, 99, 100 per L. Heureux-Dubé (dissenting in result)

B.(R) v. CAS [1995] 1 S.C.R. 315 per Cory, Iaccabucci and Major at 431-434

Racine v. Woods, supra at 185

42. The Interveners submit that the well-being and healthy development of children are central to their best interests and thus at stake in custody and access disputes. The right of the child to a relationship with and care of a parent/parents is arguably, the single most important factor in the life of child. The dignity and psychological integrity of the child are affected by the role of the parental caregiver or access parent in her life and by the care taken to foster healthy development. The Charter protects the emotional and psychological integrity of individuals by recognizing security of the person interests. It is submitted that the Supreme Court of Canada has recognized such an interest in the bond between parent and child, from the standpoint of the child. The Interveners submit that the well-being of the child is a long standing security of the person interest. This interest encompasses the importance of parental care and the parental bond but transcends parental interests.

B(R) v. CAS, supra at 368

Baker,supra at 859-862

J.G. v. New Brunswick, [1999] 3 S.C.R. 46 at 76, 80,83

K.L.W. v. Winnipeg, [2000] 2 S.C.R. 519 at 562-563, 569-573

43. The healthy development of a child entails the development of healthy attachments, the development of her identity including a positive self concept and an ability to cope with her surroundings. For a racialized child, a healthy identity includes grappling with issues of racism, combating internalized racism, developing positive racial/cultural links and racial pride. Children undergo stages of development through adolescence into adulthood. Erik Erikson, who developed a psychosocial framework, focussing on identity development, outlined stages of development from infancy through to old age. Piaget, outlines stages of cognitive development.

Cole and Cole, The Development of Children (4th) (California: Worth Publishers, 2001) at 398-399

44. Children experience and understand race and racism differently than adults do. As children grow and gain exposure to the world through school, their understanding and analysis of these issues evolve. How a child understands and experiences the concept of race/racism will impact on her healthy development. In order to facilitate healthy child development, parents need to be cognizant of the manner in which children think, learn about and process racial issues. Children do not process information in the same manner as adults. Pre-schoolers have no inherent concept of race: they are concrete and descriptive in their thinking. At this egocentric stage, the child’s descriptors will reflect items such as food. Pre-schoolers may be confused about racial labels such as Black and white as they see people as brown and pink. Pre-school children do not understand that skin colour is permanent. Black children seem to become aware of race earlier than do white children. Biracial children with white and black parents learn about race later than children with Black parents and sooner than white children. However, the use of racial labels such as "biracial" by such a young child does not mean that she is firm in her identity or that she understands such labels. She "may pick up on the feelings behind racial names long before she understands what the terms really mean".

Wright, M "I am Chocolate, You're Vanilla: Raising Healthy Black and Biracial Children in a Race-Conscious World - A Guide for Parents and Teachers (San-Francisco: Jossey-Bass, 1998) at 30, 13-35

45. Wright identifies 4 stages in racial awareness in children (this is distinct from but lays the groundwork for identity formation which occupies the teenage years and beyond).

In each stage, the awareness of the child is analyzed from the standpoint of racial self-identification, racial constancy, origin of racial identity, racial classification and racial attitudes.

I Racial Innocence (age 3 and under). Children can barely identify skin colour, let alone race, skin colour is transient, children have no sense of biological origins of skin colour, they cannot categorize others and are "developmentally inclined to see people as individuals" and not "as members of racial/ethnic groups".

II Racial Awareness (ages 3-5) Children describe skin colour in terms of the items familiar to them:food clothing, colours, children believe that magic can change skin colour and that magic is the source of skin colour , "children may accurately group people by skin color but not by race", children are still inclined to be positive on an individual basis to those who are friendly,without any concept of race; however, if the child has been "routinely taught racial bigotry, [she] may begin to form negative association with certain skin colours"

III Awakening to Social Colour(5-7) "Children can accurately identify their skin color" and make tonal distinctions eg "light-skinned"; most cannot "reliably identify their race/ethnicity", children begin to understand the permanence of skin colour, they begin to understand the link between parental colour and their own and to understand that there is social significance but descriptors are still in terms of colour and not race.

IV Racial Awareness (8-10) "Children can accurately identify their race...using terms like black and African American. Some biracial children say they are "part" black... And "part" another race, like white", children understand the permanency of racial identity, they understand the biological basis and unlike younger children can understand why different skin colours/tones may exist in one family, they rely on colour, hair colour and texture and other "cues" to identify a persons race. They also learn that " physical cues can be unreliable" and learn to interpret social and behavioral clues. "Unless they are sensibly taught not to prejudge people based on their race, children may adopt full-fledged racial stereotypes".

Wright, supra at 266, 267 (Appendix)

46. Studies show that Black children internalize negative messages about what it means to be Black through the media, through the experience of name-calling, and from a variety of other societal sources. Name-calling and exclusion from activities in schools are prevalent sources of racial abuse among peer groups.

Hatcher, R. and Troyna B. "Racialization and Children, " in Cameron McCarthy and Warren Crichlow (eds.) Race Identity and Representation in Education, (New York, Ruthledge, 1993) at 115

47. Race and racism permeate the development of a racialized child. The stages of development of the child, seen from the perspective of the biracial child, takes on additional dimensions. Racialized individuals develop a racial identity which is characterized by certain stages and which includes a sense of community consciousness. The biracial child experiences additional struggles vis a vis identity and identity crises. At the crux of identity development is a sense of self, in relation to the world around the child and how it treats/perceives the child and how the child perceives that she is being perceived. Social, cultural and historical context all bear on identity development.

Tatum , B. Why are all the Black Kids Sitting Together in the Cafeteria? (New York, Basic Books, 1997) at ,18,19; Cole, supra at 673.

48. The most challenging years for identity formation are the teenage years. The onset of puberty combined with enhanced cognitive and social development trigger identity formation which has its foundations in childhood. Children, in general, undergo two processes in identity development: Crisis/exploration and Commitment. The various stages that have been identified as pertaining to this process include: Identity diffusion, Moratorium, Foreclosure, Identity achievement

Cole, supra at 675

49. For white children, identification and commitment to being white is a non-issue: a given, which is taken for granted by them and by the dominant culture. Thus a harmony or consonance exists between external and internal factors. For racialized children, the experience is more complex. It is often, the "otherness", that which sets the child apart from the standpoint of the dominant group, that preoccupies the child’s struggle with identity.

Tatum, supra at 21

50. There are several variations of common themes regarding racial identity development in minority children, including those that deal with biracial and African Canadian children specifically. Cole and Cole stipulate that minoritized children undergo the following additional stages: Unexamined ethnic identity, Ethnic identity search--including oppositional identity formation, Ethnic identity achievement

Cole, supra, at 684

51. For African Canadians in Canada, the role of Afrikan consciousness as a facet of identity development is of great significance. Afrikan consciousness can be described as a state of awareness and being, wherein African Canadians "see, read and interpret things differently" . This state of consciousness represents a marriage of the individual and collective perspectives that goes beyond the knowledge that racism exists, "to being conscious of racist acts and the effect racism has on Afrikans". Within this framework, value systems and concepts about self and both the dominant and African groups evolve to a higher level of understanding and consonance. In developing a racial identity, which may ultimately embrace Afrikan consciousness, it is posited that African Canadian go through several stages in racial identity development: Naivete, Acceptance, Resistance and Naming, Redefinition and Reflection, Introspection and Multi-Perspective Internalization

Benton,W., supra(in the context of African Nova Scotians this thesis is an examination and extrapolation of similar and related theories )

52. The model upon which several models have built, the Cross model, identifies 5 stages of racial development: Pre-encounter, Encounter, Immersion/emersion, Internalization, Internalization-commitment. The stages under the various theories have common themes including: an initial absorption of the dominant group values including prejudices, coupled with a lack of awareness of racial issues, a sense of otherness within the white norm resulting in self and racialized group deprecating thoughts (internalized racism), an experience of racism/rejection that impels one to reconsider one’s place vis a vis the dominant group, immersion in/discovery of and possible politicization of the African Canadian identity to the exclusion and possible denigration of the dominant group, a move away from immersion in the collective group identity to a more balanced view with some appreciation for one’s role as an individual and for individuals within the dominant group, a resolution of previous inter-group and self- versus -group perspectives in consort with strong racial pride and respect for the positive aspects of the dominant society.

See also: Herring, R. "Developing Biracial Ethnic Identity: A Review of the Increasing Dilemma"(Journal of Multicultural Counseling and Development, 1995) Vol 23 at 29-38.

53. Identity development is caught up in concepts of self esteem or self-satisfaction. Identity development and concepts of the self are further influenced and shaped by external and internal sources, through contact with others and the extent to which an individual perceives she is valued by others. The self has been defined as including the "experienced totality of a person that includes body, body parts, including skin, skin colour, bodily features and hair textures".

Marsman, V. "Identity of the Bi-Racial Child" (Halifax: Unpublished Thesis: Master of Social Work, Dalhousie University, 1993) at 16.

Cole, supra at 685.

54. In their ongoing, identity development, teenagers begin to experience a greater "racial divide". Interracial friendships are sometimes strained and interracial dating is often taboo. Biracial youth may be grouped with Black youth for dating purposes, but looked down upon by some Black youth for not being black enough. Biracial youth may find themselves trying to prove that they are Black enough or alternatively, may try to pass for white as a means of avoiding having to deal directly with racial issues. Biracial teens are now Black teens and face the stereotypes about the Black male youth. The "cute" biracial boy will be a Black man in society’s eyes and his life experience will be moulded by stereotypes, prejudice and racism associated with the Black male.

Wright, supra at 218-238

Freeman, E. and McRoy, R. "Racial Identity Issues among Mixed Race Children" (Social Work in Education, 1986). Vol 8, pp164-174.

Tatum, supra at 59-70; Bernard W, supra

55. The impact of the construct of race and racism on the development of a healthy identity, including (in large part because of these societal influences) a healthy racial identity, for a biracial child is evident from the literature. Again, as the literature attests, life is more complex for a racialized child and can include struggles with internalized racism.

Perspectives and Experiences of Biracial Individuals

56. Central to a child-focussed equality analysis are the perspectives and experiences of biracial individuals. Research and experiential data serve to illustrate both the impact of a race-less or race-minimizing approach and the perspectives of biracial individuals in terms of what contributes to healthy development. "Biracial children tend to display identification problems when they internalize outside prejudice"(Herring). Twenty five percent of one sample "had a more problematic psychosocial adjustment, which could be linked to ambivalence of being Biracial and the inability to develop a cohesive ethnic and personal identity. These participants were more likely to live in single parent families, had less contact with the non-custodial parent’s family and racial issues were typically avoided (Hines). The impact of Intra family racism and racism of parents on children is significant for biracial children (Folaron). Children exposed to these attitudes typically react by denying their heritage (Folaron). Biracial children who grow up isolated from other African Canadians can experience identity problems as they may face marginalization from both reference groups (McRoy).

Herring, supra

McRoy. R "Cultural and Racial Identity in Black Families". In Freeman, E.; Logan. S.; & McRoy, R. (eds). Social Work Practice with Black Families: a culturally specific perspective. (New York, Longman, 1997) at 97-111.

Folaron,G. & McCartt-Hess,P."Placement Considerations for Children of Mixed African American and Caucasian Parentage".Child Welfare (1993) LXXII (2),113-125.

Hines, Alice M. & Gibbs, Jewelle T. "Negotiating Ethnic Identity: Issues for Black-White Biracial Adolescents". In Root, M. (ed). Racially Mixed People in America. (London: Sage, 1992). at 223-238.

Shwartz, W "Identity Development of Multiracial Youth" (1998) vol. 137 ERIC Clearinghouse of Urban Education.

57. In one British study, the narrative data from white mothers of Black children focussed on the following: Almost all of the mothers had to negotiate racist attitudes of their parents which impacted on the child and caused great stress and even depression for the mothers; white neighborhoods were dangerous places for the children who experienced racial abuse whereas multi-racial communities were more positive; co-mothering alliances with Black women who acted as "other mothers" was a positive resource, particularly for single mothers.

Twine, F.W. "Transracial Mothering and Antiracism: the case of white Birth mothers of Black children in Britain". Feminist Studies, (1999). Vol 25(3), at 729-74.

58. In the adoption context, one study has found that Black children adopted by Black families as compared to those adopted by white families had no significant differences in self-esteem. However, transracially adopted children were more conscious of their own race and had greater difficulties in terms of racial identity. Further, children who grew up in families that ignored or played down race and had limited contact with African Americans, held stereotypes about Black people (Anderson). In another adoption study, black children raised in white communities with little contact did not make the gains in terms of racial identity and pride on par with same race adoptees who surpassed the former. (Johnson). Biracial youth who are assimilated into white society, face risk of identity confusion and alienation from the racialized identity (eg. Williams, Looking for Linda).

Anderson, R; Lauderdale, M.; McRoy, R. & Zurcher, L. "Self-esteem and Racial Identity in Tranracial and Inracial Adoptees" (Social Work, 1982) pp522-526.

Johnson, P.R.; Shireman, J.F.; &Watson, K.W. "Transracial Adoption and the Development of Black Identity at Age Eight"(Child Welfare, 1987) LXVI (1), at 45-55.

Williams, B. "Looking for Linda: Identity in Black and White"(Child Welfare (1987).Vol LXVI (3), pp 207-215.

Harris, A.; Jackson, B.; Kerwin, C.; & Ponterotto, J.G. "Racial Identity in Biracial Children: A Qualitative Investigation" (Journal of Counselling Psychology 1993) Vol 40(2), pp 221-231.

59. From the self-reported perspective of biracial individuals, the following are significant and consistent issues:

-Curiosity from others; constantly having to explain one’s racial origin/ family make up:eg. are you adopted?

-Being treated like a novelty

-Desiring to protect both parents-not wanting to acknowledge ignorance of the white parent, wanting to protect the African Canadian from hearing about racial incidents-Not wanting to choose sides

-Feeling caught between two worlds

-Racial ambivalence

-Exposure to racism from extended family, peers, friends parents, the non-racialized parent, society at large; loss of friendships when peers or their parents discover the colour of one’s parent.

-Feelings of marginalization from both groups: not being Black enough on the one hand, being deemed Black on the other; however, being accepted more readily by the Black community.

-Experiencing "shadism" -colour and shade playing an important role in how one is treated by both groups

-Experiences of being treated and assumed to be Black

-For lighter individuals, experiences of "passing" including exposure to racist conversations/having to decide whether to remain quiet or defend oneself and one’s family

-Appreciation for the role of the mother--be she white or Black

-Feeling that neither parent can truly understand

-Resentment when race is not an issue at home but when it catches up to one in society

-Sadnes/confusion resulting from racist comments or ignorance of parents

-Appreciation of being able to relax and let one’s guard down around if living in an African Canadian home -Appreciation of dialogues about racism

-Appreciation of exposure to African Canadian heritage

-Resentment of obsessing over racism

-Appreciation of an understanding of grooming needs

-Appreciation of positive reinforcement regarding physical appearance

-Appreciation of a fluid racial identity depending on the context

-Appreciation of respect for self-identified racial identity

-Significance of siblings and other mixed race persons with whom to discuss issues

60. Biracial adults report an initial ignorance of racial issues, followed by a confusion vis a vis identity. They may report a subsequent fluidity in identity: a racial identity that fluctuates depending on life experience, timing and context. Many biracial individuals have come to accept and appreciate this fluidity. It is for all intents and purposes, a means of coming to grips with the reality that race will play a different role in their lives depending on the social or familial situation. Other biracial individuals strongly identify as being African Canadian, some identify as Black and mixed or fewer, as white and mixed; some identify as "mixed’ or "half and half". There is a strong recognition of the social reality of racialization and being "classified" as Black; as well as of the socio-political and psychological reasons for "choosing" a Black identity.

Hill, L. "Zebra, Growing Up Black and White in Canada" in Talking About Difference (Toronto: University of Toronto Press, 1999) at 41-47

Senna, D. "The Mulatto Millennium" in Half and Half, O'Hear, (e.d.) (New York: Pantheen Books, 1998) at 12-27;Gladwell, M. "Lost in the Middle" in Half and Half, supra at 112-124;Mura,."Reflections on My Daughter" in Half and Half supra at 80-98

Fatimilehim, I "Of Jewel Heritage:…", (Volume 22 Journal of Adolescence, 1999) at 303-318; Mallows, M. "Abercrave weekend: exploring the needs of transracially adopted young people"(Adoption and Fostering 1989) Vol 13 (3), pp 34-36.

Anderson, supra

Root,"Bill of Rights for Racially Mixed People",in the Multiracial Experience,supra 3-36

Samuels, S. (Toronto: 2000, Publication pending).

61. The struggle with racial identity in a race-conscious, discriminatory world, for biracial individuals is evident.

It was something that was ingrained in me by both my mother and my father: "You’re Black and you’re White. You have to accept everything about yourself, otherwise you’re not going to like yourself. But claim you're Black first, because that’s the part that needs sticking up for most…I’ve had teasing from both sides, and I’ve dealt with it the way my parents taught me to. And they’re right, the Black side’s the one that almost always needs protecting, so I claim it first.

Tatum, supra at 184.

62. Given the perspectives of biracial individuals, within the context of the above sociological and psychological precepts, what are the needs of the biracial child? The needs of the African Canadian, biracial child can be grouped under two primary, related concepts: the need to develop tools to deal with racism; the need to develop a positive racial identity. These include the need for:

-an environment free from racial stereotyping and negative attitudes towards African Canadian and Caucasians

-a respectful relationship as between parents

-exposure to positive images of African Canadians

-exposure to African Canadian heritage

-instillation of a sense of pride in African Canadian heritage

-recognition of the child as an individual

-an absence of pressure to "choose" a racial identity

-freedom to explore different racial identities

-role models from the racialized group, African Canadian

-positive messages about physical characteristics

-appropriate skin and hair care

-tools for coping with: Questions about family structure; Questions about racial origin

-parental awareness, understanding and action regarding all of the above

- pat responses/positive self and group reinforcement for coping with racism

-tools for coping with marginalization by both the dominant and racialized group

-exposure to African Canadian children (including biracial children) and children from all races

-positive extended family attitudes towards African Canadians, Caucasians and the interracial family

Small, J. "Ethnic and Racial Identity in Adoption within the United Kingdom" (Adoption and Fostering, 1991) Vol 15 (4), pp 61-69.

Wright; Marsman; Twine; Johnson; Folaron, supra

Else, J.F. & Jones, C.E. "Race and Cultural Issues in Adoption" (Child Welfare, 1979) LVIII (6), pp 373-382.

Davies, C. "Racial and Cultural Issues in Custody Matters" (Canadian Family Law Quarterly, 1994) Vol 10, pp 1-31.

63. By providing the child with sufficient information and exposure to the racialized group, the child is spared a fresh search for her roots at the identity formulation stage. The emphasis on the racialized heritage does not negate the importance of the dominant culture, but recognizes that in Canada and the United States, exposure to the Caucasian world is the day to day norm. The emphasis on the importance of the African Canadian heritage is needed to effectively counter racism and to equalize the importance of the racialized aspects of the child’s life.

Benton ; Davies ,Davis, L.; Mura, supra

64. The corollary to these needs is parental ability to meet these needs. The Interveners do not expect anyone to be a perfect parent, however, children learn from those around them and pick up nuances, negative feelings and attitudes. It is critical that as they learn about race and its social relevance, they experience positive modeling from parents and teachers. Racial socialization influences the lives of children and a positive socialization contributes to a positive sense of self and a positive racial identity. Of the several studies done and books written regarding the healthy development of biracial children, there is considerable consensus as to what forces influence children and in terms of parenting practices that contribute in a positive way to a well-adjusted child. The external influences that impact on a child’s development include parents, extended family, parental friends, school, church, recreational leaders and participants and peers.

Fatimilenim, supra

Wright, supra

65. The following represents a synthesis of the recommendations regarding positive racial socialization for a biracial child. The recommendations correlate to the needs and experiences of biracial children.

-Positive and secure relationships within the family-as between parents- to deal with the conflicts and pressures that will arise (Small)

-The family members must respect each other where race is concerned (‘state of equilibrium") (Small)

-The child must have positive feedback about him/herself-Children need to hear positive comments about their hair and other physical characteristics and should not be exposed to negative comments (Wright)

-Parents should choose ecological systems: Schools, Recreation Services, Churches and Neighborhoods, which are integrated and committed to diversity (Zuninga)(Melina)

-Parents should develop friendships with Black families and individuals to provide role models and develop the child’s [racial] framework (Zuninga) Such contact should be frequent and positive

-Children should be encouraged to acknowledge and discuss their racial heritage with parents and other significant individuals (McRoy)

-Parents need an ability to perceive their child’s racial heritage as different from their own and must be willing to make changes conducive to the development of a positive racial identity for the child (McRoy)

-Frequent, quality contact with the extended racialized family should be encouraged

-Language patterns and communication patterns of both communities need to be understood (McRoy)

-Parents need to have a warm, accepting relationship with the child where identity issues are addressed (Hines)

-Parents should seek out books, toys and programs that reflect the child’s heritage

-Parents need to acknowledge that racism exists (Melina)

-Parents need to acknowledge their own biases and prejudices

-Parents should encourage children and assist them in appreciating and exploring their culture and in instilling racial pride

-Parents "must provide Black children with a repertoire of responses to the racism and prejudice they will encounter"(Melina)(Wright)

-Parents must appreciate the levels of racial awareness of the child and not overreact to comments from small children (Wright)

-Parents must be able to identity a situation as involving subtle racism (or not) and take steps to explain the situation in a constructive fashion and to encourage positive feelings in the child (Wright)

-Parents must engage in "active exploration of the realities of oppression and racism as they arise in the child’s experiences" (Banks)

-Parents must highlight " by discussion the positive presence of Black people in the media and [monitor] negative portrayals (Banks/Wright)

-White mothers and in particular, single mothers can benefit from "strong relationships with Black women {functioning} as other mothers. {These women act} as a cultural resource reinforcing their maternal competence..[and] serve as role models, providing cultural knowledge (Twine)

-White mothers must deal with prejudices they face from both communities. (Twine)

-Parents must avoid racial epitaphs and derogation of the other parent’s race. (Wright)

-Parents must address issues of racism with extended family members and friends

-Support groups of parents with children in similar situations may also be helpful to the parent

Marsman; Folaron, Hess, Anderson, Wright, Else, McRoy, Twine ,Small, Hines, Herring, supra.

Melina, L. R. "Transracial adoptees can develop racial identity, coping strategies". (Adopted Child, 1994) Vol 13 (1) pp 1-5.

Davis L. "The New Ingredient in the Identity of Black Biracial Children" (op.Ed.) (1996)

Banks, N. "Techniques for Direct Identity work with Black Children" (Adoption and Fostering, 1992) Vol 16 (3), pp 19-24.

On a pragmatic level, Wright offers suggestions to parents such as: provide basic love and affection, promote self-worth by focussing on positive comments regarding skin tone etc and avoiding the negative, or comparisons, keep the role of race in perspective, do not "obsess" on race and follow your child’s lead, empathize from the perspective of your child and not your own experiences, avoid talking about people in terms of skin colour or race, focus on developing your child’s individual character and talents, do not pass on your own prejudices and be mindful of your own skin-colour sensitivities, be aware of your child’s level of race awareness, be careful of amount and type of information you give about racism at certain stages, encourage multi-racial and cultural friendships, monitor television viewing for stereotypes, avoid passing on stereotypes, share your family history, expose your child to a variety of books and dolls, carefully select your day care/nursery school, and celebrate Black heritage. A similar list of tips for teachers is provided. Parents should be cognizant of teacher attitudes and teaching styles.

Wright, supra at 74-81

66. Assessments are the norm in custody and access cases. But racially and culturally sensitive assessments are also imperative for the biracial child. The goal of an assessment, is to "1. Determine specifically which factors are affecting (or will affect) the child’s racial identity in a positive or negative manner" and "2. To identify specific supports that are available in the child’s environment for developing and maintaining an overall positive image and positive racial identity". Ideally, the assessor should be an individual who is racially and culturally sensitive to the issues i.e. someone who is cognizant of issues relating to race and racism. Bernard and Bernard have developed an assessment tool for use in several contexts, including the custody and access context for biracial children. Under the "Triple A Paradigm" assessors focus on the parental Awareness of the issues facing biracial children, parental Analysis of the manner in which racism will impact on the child including strategies, and an assessment of current and planned Actions to deal with racial issues and barriers. Assessments may not always be desirable or necessary and parenting plans that address the issues comprehensively, can be utilized.

Freeman and McRoy, supra

Zuniga, M. "Transracial Adoption: Educating the Parents". Journal of Multicultural Social Work (1991).. Vol 1(2), pp17-31.

Bernard, "Biracial Children: Examining Identity and Placement issues" (Halifax: Unpublished Literature Review and Assessment Tool) at 33-39

For the Sake of The Children:Report of the Joint Committee on Child Custody and Access (Ottawa:1998) at Recommendation 11(Parenting Plans).

 

Which Parent

67. The Court and any assessors are faced with an important determination vis a vis custody and access. Every African Canadian biracial child will have unique challenges and will experience racism. Biracial teens are at risk for an identity crisis or crises. Parenting of African Canadian biracial children requires additional sensitivity and parenting skills. The decision about which parent will be able to best facilitate this process and contribute to a healthy racial socialization and overall healthy development of the child is one of fact, for the Courts, on a case by case basis. This integral facet of the "best interests" of the racialized child, must be informed by an awareness of the impact of race and racism on the child and the family.
68. Some studies show that Black parents, including those who are partners in interracial relationships are more likely to be aware of the need to prepare their children to cope with racism: The racialized parent will be in a position to relay lived experiences of racism to their children, to have empathy based on experience and to relay oral community history. They will be well-positioned to deal with hair and skin care issues. Non-racialized parents face additional challenges and require a demonstrated commitment to raising a Black child. Yet they deserve every opportunity to demonstrate their awareness and commitment to the assessor and the Courts. The non-racialized parent, with the right supports, may in any given case, be the appropriate custodial parent. Of great importance is which parent will facilitate contact and the development of racial identity in a manner which avoids conflict, discord and disharmony.

Kerwin, supra; Marsman, supra

Young, supra at 80

69. Further, given the history of other parenting and the openness to co-mothering alliances/mentors for white mothers, and the importance of the extended family in the African Canadian community, the Courts should be cognizant that solutions exist which are outside of the "mainstream" notion of family and which maximize contact with the racialized group and/or both parents.

Race Must Inform All Other Facets of the Test

70. The Interveners submit that in addition to race being given explicit, independent consideration, the historical and social context of racialized groups should inform each specific factor considered by the Courts. For example, the social reality of race and racism impact on issues relating to education and extended family.

Section 15 Analysis Applied

71. The Multicultural provisions of the Charter invoke overarching principles that should inform the section 15 approach. Respect for diversity is a value in Canadian society that has recently been explicitly referenced by the Supreme Court of Canada in Baker v. Canada with respect to the rights, interests and needs of children.

Baker, supra; Canadian Charter of Rights and Freedoms, s. 27

72. The Supreme Court of Canada has recognized the importance of racial identity in the section 15 context: "people rightfully take pride in their race and ethnic origin; they find their identity in their colour and sex.". Further, this Honourable Court has acknowledged that issues relating to "cultural identity" go to the human dignity of the claimant, engaging section 15.

Miron v. Trudel , [1995] 2 S.C.R. 418 at 500

Corbiere v. Canada , [1995] 2 S.C.R. 203 at 222, 223

73. The right to benefit fully from the "best interests" test, like the right to benefit fully from a fair trial right in the context of jury selection cases can be viewed as an equality right. Non-racialized accused need not challenge the jury for racial bias, whereas, for visible minority accused, this is essential. Similarly, non-racialized children need not have their interests considered through the paradigm of race in a society in which they and their dueling parents are all part of the dominant group, yet for racialized, biracial children, this measure is arguably, "a must".

R. v. Williams, supra; R. v. Koh, 42 O.R. (3d) 668 (Ont. C.A.)

74. From an equality perspective, the determination of the "best interests of the child" for the biracial child must take into account that child’s place in society, and her unique interests and needs in order for her to enjoy equal benefit of the law. To ignore the issue of race may have consequences that are potentially discriminatory and will impose disadvantages on children from racialized groups that are not imposed on others. Biracial children have been and are classified by society on the basis of colour. In the case of a biracial child of African parentage, he will be treated as a Black child in Canadian society. The child may also self-identify as Black. It is important to note that s. 15 claimants need not prove membership in a "sociologically recognized group in order to be successful. It will always be helpful to the claimant to be able to identify a pattern of discrimination against a class of persons with traits similar to the claimant". Self-identification may also play a role.

Law, supra at 536

75. In sum, the Interveners submit that the appropriate s. 15 analysis regarding race and custody/access should be framed as follows. An approach to the best interests of the child, which fails to incorporate race as a "major" or important factor, to be given explicit consideration and considerable weight, ignores or minimizes the significance of race to the subject African Canadian biracial child, and treats the racialized biracial child differently than non-racialized children. This approach fails to take into account the disadvantage faced by the racialized child and a meaningful, relevant part of that child’s being. Race, as in Racialization, is not inherent in who non-racialized children are and how they are treated, thus it holds little relevance for them. The personal characteristic, race, is one which is linked to the disparity and one which receives Charter protection. The impact of withholding the full benefit of the best interest’s test from racialized children is a profound one, which goes to the core of the protection of human dignity and equality. The reasonable African Canadian biracial child, dispassionate and fully apprised of the circumstances of biracial children, being the subject of a life-impacting custody or access determination, aware of the history and nature of racism in Canada and the particular history of his racialized group would view a failure to consider race in the determination of his best interests as demeaning to his dignity. An approach, which ignores a significant aspect of a person’s, being, will invariably perpetuate insidious racism and stereotypes. To say that race does not matter, ignores a social reality for the racialized child.

Responses to Justifications For a Race-less Approach

76. One of the common arguments raised against the reference to race as a factor in placement decisions is that biracial children represent a step towards racial harmony and that by focussing on race, we reinforce the negative. T.L. Perry argues that two prevailing positions are evident in the discourse on interracial adoption, a) liberal colour blind individualism and b) color and community consciousness. Liberal colour blind individualism believes that the complete eradication of racism can be achieved; that race should not be an important factor in evaluating individuals as we should be working towards an ultimately colour blind society; and it uses the individual as the primary unit of analysis of rights and interests. On the other hand, a colour and community consciousness is far more pessimistic about the eradication of racism and views racism as a permanent part of the American landscape. It recognizes the profound influence of race in the lives of individuals, it values a multicultural society; and it emphasizes the rights and interests of the group with which the individual is identified.

Perry,T.L., supra at 38

 

77. The colour blind approach then, benignly ignores the struggles of the biracial individual in a race conscious world as well as his desire to belong and identify in the communal sense:

That’s why we 're all, in theory, so excited about the idea of miscegenation--because if we mix the races, presumably, we create a new generation of people for whom existing racial categories do not exist. I don’t think it is that easy, though. If you mix black and white, you don’t obliterate those categories; you merely create a third category, a category that demands, for its very existence, an even greater commitment to nuances of racial taxonomy. My mother never had to think about whether she was black. She was. I have to think about it, and turn the issue over in my mind, and gaze in the mirror and wonder, as I was so memorably asked, what I am.

Gladwell, in Half and Half, supra at 124

78. The proponents of a race-less approach also argue that race matching has had detrimental effects on child welfare placement in the United States. This argument has no bearing in the custody and access setting. Nor are the Interveners advocating a strict race matching approach. The developmental needs of the biracial child transcend both the adoption and the custody contexts, but the adoption context places the child and society in a unique predicament. Children in foster care who cannot be placed due to race matching restrictions face a different set of circumstances than a child with two parents, one of whom is racialized, vying for custody. The importance of a critical analysis of adoption placement issues including the recruitment of Black adoptive families and foster homes is beyond the scope of this factum.

Perry, supra

Judicial Notice of the Importance of Race to the Racialized Child and of Racism

79. The evolution of race-based, s. 15 cases, taken together is instructive in examining and directing the exercise of discretion by the courts. An equal application of the best interests of the child test should not put parents in the unenviable position of having to prove that racism exists or that it is important for the child to be exposed to her racialized heritage. In exercising their discretion, judges acting in a reasonable manner are now expected to bring to the bench the knowledge of the community in which the issue arises (e.g. where the child resides). In the Canadian context, this entails an awareness of racism. In light of recent race-related equality jurisprudence, the Courts are now in a position to and have taken judicial notice of racism in Canadian society. Courts should likewise take judicial notice of the relevance and significance of race and racism in the lives of racialized children. Parents in custody disputes should not be subject to an additional burden which would in and of itself have a discriminatory impact.

Law, supra

L’Heureux Dubé, supra at 110-122

R. v. S.(D.), supra at 507-509

Williams, supra at 1155, 1156

Role of the Judiciary

80. It has been acknowledged that in exercising their discretion, judges are susceptible to the subtle racial and other stereotypes and biases that persist in Canadian society. This is of particular concern in custody and access matters.
81. In offering judges guidance in terms of the unique needs and interests of biracial children and in highlighting existing and historical stereotypes, this Honourable Court can raise the consciousness of counsel and the judiciary and help rectify the perpetuation of stereotypes through inadvertently biased decision-making. Given the expectation that the judiciary will bring to their reasonable decision making a knowledge and awareness of racism in the community, any measures which will assist in heightening awareness would be beneficial.

McKinley, C. "Custody Disputes following the dissolution of interracial marriages: best interest or judicial racism", ( Journal of Family Law1980) Vol 19, pp 97-136.

Brophy, J. "Race and Ethnicity in Care Proceedings: implications from a national survey of cases containing expert evidence", (Adoption and Fostering 2000). Vol 24(2)pp 70-73.

L’Heureux- Dubé, supra; For the Sake of the Children, supra, at 59

An Equality and Best Interests Analysis for the Courts

82. The Interveners respectfully submit that the Courts, in addressing custody and access issues involving biracial children should approach the decision as follows:

Part IV: Order Requested

1. The Interveners respectfully request that the Court offer guidance in terms of the role of race in custody and access disputes in a manner consistent with the submissions herein.

ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 22^nd DAY OF MAY, 2001.

____________________________________

SHEENA SCOTT & MARIE CHEN

Counsel for the Interveners,

The African Canadian Legal Clinic, Association of Black Social Workers and the Jamaican Canadian Association

Part V: Table of Authorites

CASES Page No.

AH (Re), [1995] Scott. J. No. 54 11

Anderson v. Williams [1998] B.C.J. No. 1428 (B.C.S.C.) 7, 27, 29, 31

B.(R) v. CAS [1995] 1 S.C.R. 315 20

Baker v. Minister of Immigration and Citizenship [1999] 2 S.C.R. 817 5, 18, 21, 34

Camba v. Sparks, (1993), 124 N.S.R. (2d) 321 (N.S. Fam. Ct.) 8

Corbiere v. Canada, [1995] 2 S.C.R. 203 34

Darling v. Chung [1988] O.J. No. 1334 (Sup. Ct. Ont.) 7

Drummond v. Lane 76 N.S.R. (2nd) 430 9

Ffrench v. Ffrench (1994), 134 N.S.R. (2d) 241 (N.S.S.C.) 8

Francis v. M.C.I .(1999), 179 D.L.R. 4th 421 (Ont. C.A) 18

Hayre v. Hayre, (1975), 21 R.F.L. 191 (B.C.C.A); 9

(1973) 11 R.F.L. 188 (BCSC)

Hennebohm v. Hennebohm, (1995) 149 N.S.R. (2d) 125 (N.S. Fam. Ct.) 8, 9

Holt v. Chenault, (1987) 722 S.W. 2d 897 (S.C. Kentucky) 10

In the Marriage of Goudge (1984) 54 A.L.R. 514 11

In the Matter of B and R, 19 Fam LR 594

(Family Court of Australia, Sept. 1995) 10

J.G v. New Brunswick, [1999] 3 S.C.R. 46 21

Jones v. Jones, 542 N.W.2d 119 1996 10

K.L.W. v. Winnipeg, [2000] 2 S.C.R. 519 21

K.V. v. T.E. [2000] B.C.J. No. 491 (B.C.C.A) 5

Kassel v. Louie, [2000] 11 R.F.L (5th) 144 9

Law v. Canada [1999] 1 S.C.R. 497,at 549 4, 5, 35, 37

Lovelace v. Ontario [2000] 1 S.C.R. 951 5

Maier v. Chiao-Maier, [1990] S.J. No. 531 (Sask. Ct. Q.B.) 7

Miron v. Trudel, [1995] 2 S.C.R. 418 34

Palmore v. Sidoti, 466 U.S. 429 (1984) 9, 10

R. v. Koh, 42 O.R. (3d) 668 (Ont. C.A.) 34

Page No.

R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.) 20

R. v. S. (R.D.), [1997] 3 S.C.R. 484 5, 37

R. v. Williams, [1998]1 S.C.R. 1128 20, 34, 37

R. v. Wilson (1996), 107 C.C.C. (3d) 87 (Ont. C.A.) 20

Racine v. Woods, [1983] 2 S.C.R. 173 7, 20

Von Bezold v. Brideau, [1986] P.E.I.J. No.3 (P.E.I.S.C.) 7

White v. Matthews [1997] N.S.J. No.604 (N.S. Fam. Ct.) 7

Young v. Young, [1993] 4 S.C.R. 3 at 74-77 2

ARTICLES

Anderson, R; Lauderdale, M.; McRoy, R. & Zurcher, L. "Self-esteem 27, 29, 31

and Racial Identity in Tranracial and Inracial Adoptees", Social Work

(1982) 522-526.

Augustin, N., "Learnfare and Black Motherhood:The Social Construction of 17

Deviance" in Wing (ed.), Critical Race Feminism: A Reader (New York:

New York University Press, 1997) 144-150

Backhouse, C., Colour Coded: A Legal History of Racism in 12, 13, 14, Canada, 1900-1950 (Toronto: University of Toronto Press 1999) 15, 16

Banks, N. "Techniques for Direct Identity work with Black Children", 31

Adoption and Fostering (1992) Vol. 16 (3), 19-24.

Benton, W. "The Evolution of Afrikan Consciousness: The Effects of 2, 24, 30

R.A.C.I.S.M. on Afrikans in the Diaspora (Halifax: Unpublished Thesis,

Dalhousie University, 1997)

Bernard, W. "Biracial Children: Examining Identity and Placement issues" 32

(Halifax: Unpublished Literature Review and Assessment Tool)

Bernard, W., "Survival and Success: As Defined by Black Men…" 17, 18, 26

(Sheffield: Unpublished Thesis, 1995);

Page No.

Brophy, J. "Race and Ethnicity in Care Proceedings: implications from 37

a national survey of cases containing expert evidence",

Adoption and Fostering (2000) Vol. 24(2), 70-73.

Carasco, E. "Race and Child Custody in Canada; Its Relevance and Role", 2

(1999) 16 Can. J. Fam. L. 11

Cavanaugh-O'Keefe, J. "The Roots of Racism and Abortion: 14, 15

An Exploration of Eugenics"

Cole and Cole, The Development of Children (4th) 21, 23, 24

(California: Worth Publishers, 2001) at 398 399

Davies, C. "Racial and Cultural Issues in Custody Matters", 30

Canadian Family Law Quarterly (1994) Vol. 10, 1-31.

Davis, A.Y., Women, Race & Class, (New York: Vintage Books, 1983) 16

Davis L. "The New Ingredient in the Identity of Black Biracial Children" 31

(op.ed.) (1996)

Else, J.F. & Jones, C.E. "Race and Cultural Issues in Adoption",

Child Welfare (1979) LVIII (6), 373-382. 30

Falconer, J. "Colour Profiling: The Ultimate "Just Deserts" 18

(Toronto: 1988 American Bar Association Conference)

Fatimilehim,I., "Of Jewel Heritage:…", Vol. 22 Journal of Adolescence (1999), 29, 30

303-318;

Folaron, G. & McCartt-Hess, P. "Placement Considerations for Children of 26, 30, 31

Mixed African American and Caucasian Parentage". Child Welfare (1993)

LXXII (2),113-125.

For the Sake of The Children: Report of the Joint Committee on Child Custody 32, 38

and Access (Ottawa:1998)

Francis, V., "In the Application of the "Best Interests of the Child Test in 18

Adoption, There must be a place for the Consideration of Race"

(Ottawa; NAWL, 1994)

Freeman, E. and McRoy, R. "Racial Identity Issues among Mixed Race

Children", Social Work in Education (1986) Vol. 8, 164-174 26

Page No.

Gittens, Margaret, David Cole et al., Report of the Commission on Systemic 18, 20

Racism in the Ontario Criminal Justice System, Queen's Printer for Ontario,

December, 1995

Gladwell, M. "Lost in the Middle" in O'Hear (ed.), Half and Half, 28, 36

(New York: Pantheen Books, 1998)

Hamilton, S. "A Survey of Early Black Women in Nova Scotia in Bristow, 13

et. al, (eds.), We’re Rooted Here and They Can’t Pull Us Up: Essays in African

Women’s History (Toronto: University of Toronto Press, 1994)

Harris, A.; Jackson, B.; Kerwin, C.; & Ponterotto, J.G. "Racial Identity in 27

Biracial Children: A Qualitative Investigation", Journal of Counselling

Psychology (1993) Vol. 40(2), 221-231.

Hatcher, R. and Troyna B. "Racialization and Children, " in McCarthy, C. 23

and Crichlow, W. (eds.) Race Identity and Representation in Education,

(New York, Ruthledge, 1993)

Henry, F., The Colour of Democracy; Racism in Canada 1, 2, 13, 20

(Toronto: 1995 Harcourt Brace & Company, Canada, at 3,4

Herring, R. "Developing Biracial Ethnic Identity: A Review of the 25, 26, 31

Increasing Dilemma", Journal of Multicultural Counseling and Development,

(1995) Vol. 23, 29-38.

Hill Collins, P. "Black Feminist Thought…"(New York: Routledge, 1991) 17

Hill, L. "Zebra, Growing Up Black and White in Canada" in Talking About 28

Difference (Toronto: University of Toronto Press, 1999)

Hines, Alice M. & Gibbs, Jewelle T. "Negotiating Ethnic Identity: Issues for 26, 31

Black-White Biracial Adolescents" in Root, M. (ed). Racially Mixed People

in America. (London: Sage, 1992).

Hoberman, J., "Darwin’s Athletes: How Sport Has Damaged Black America 17

and Preserved the Myth of Race"

(New York: Houghton Mifflin Company, 1997)

Hutchison, Y. "Multicultural/Multiracial Policy as it relates to Placement 18

of Black Children in Foster Homes" (1994) Vol. 62 (4)

The Social Worker, 185-189

Page No.

Johnson, P.R.; Shireman, J.F.; &Watson, K.W. "Transracial Adoption and the 27, 30

Development of Black Identity at Age Eight", Child Welfare (1987) LXVI (1),

45-55.

Lawson, E. "Black Women’s Mothering, a Historical and Contemporary 19

Perspective", Mothering in the African Diaspora (2000) Vol. 2 #2

Journal of the Association of Mothering 21-30

Lopez , I.F. Haney. "White By Law" in Richard Delgado (ed.) 16, 20

Critical Race Theory: The Cutting Edge

(Philadelphia: Temple University Press, 1995)

Lopez, I. "The Social Construction of Race" in Delgado, (ed.) Critical 12

Race Theory: The Cutting Edge (Philadelphia: Temple University Press 1995)

Mallows, M. "Abercrave weekend: exploring the needs of transracially 29

adopted young people", Adoption and Fostering (1989) Vol. 13 (3), 34-36.

Marsman, V. "Identity of the Bi-Racial Child" (Halifax: Unpublished 25, 30, 31, 33

Thesis: Master of Social Work, Dalhousie University, 1993)

McKinley, C. "Custody Disputes following the dissolution of interracial 37

marriages:best interest or judicial racism",

Journal of Family Law (1980) Vol. 19, 97-136.

McRoy & Hall, "Transracial Adoption, In Whose Best Interest?" in Root, M. 18

(ed.) The Multiracial Experience, (California: 1996, Sage Publications)

63-97

McRoy. R. "Cultural and Racial Identity in Black Families" in 26, 27, 31, 32

Freeman, E.; Logan. S. & McRoy, R. (eds), Social Work Practice with

Black Families: a culturally specific perspective. (New York, Longman, 1997)

Melina, L. R. "Transracial adoptees can develop racial identity, 31

coping strategies". Adopted Child (1994) Vol. 13 (1) 1-5.

Mura, D. "Reflections on My Daughter" in O'Hear (ed.), Half and Half 28, 30

(New York: Pantheen Books, 1998)

Perry, T.L. "The Transracial Adoption Controversy: An Analysis of 19, 36, 35

Discourse and Subordination," Review of Law and Social Change

1994 Vol. XXI:33

Page No.

Pierson, R. "Introduction" in R. Pierson & N. Chadhuri (eds.), Nation, 16

Empire and Colony: Historicizing Gender and Race

(Bloomington: Indiana University, 1998)

Pollock, G., "The Role of Racism in Child Custody Decisions Between Natural 14, 16

Parents or Biracial Children" [1997] Vol. XXIII

Review of Law and Social Change 603

Roberts, D. "Killing the Black Body, (New York: Vintage Books) 1997 13

Root, M., "Bill of Rights for Racially Mixed People", in The Multiracial 29

Experience, 3-36

Samuels, S. (Toronto: 2000, Publication pending). 29

Senna, D. "The Mulatto Millennium" in O'Hear (ed.), Half and Half, 28

(New York: Pantheen Books, 1998)

Shwartz, W. "Identity Development of Multiracial Youth" (1998) Vol. 137 26

ERIC Clearinghouse of Urban Education.

Small, J. "Ethnic and Racial Identity in Adoption within the United 29, 30, 31

Kingdom", Adoption and Fostering (1991) Vol. 15 (4), 61-69.

Stasiulus, D. & Jhappan, R. "The Fractitious Politics of a Settler Society: 13

Canada" in D. Stasiulus & Nira Yuval-Davis (eds.), Unsettling Settler Societies:

Articulationof Gender, Race, Ethnicity and Class (London: Sage Publications, 1995)

Tatum , B. Why are all the Black Kids Sitting Together 23, 24, 26, 29

in the Cafeteria? (New York, Basic Books, 1997) at ,18,19

The Honorable Madame Justice L'Heureaux-Dubé "Making Equality 3, 20, 37, 38

Work in Family Law", (1997) 14 Canadian Journal of Family Law 103-127

Twine, F.W. "Transracial Mothering and Antiracism: the case of white 27, 30, 31

Birth mothers of Black children in Britain" Feminist Studies (1999)

Vol. 25(3), 729-74.

Walker, J., "Race", Rights and the Law in the Supreme Court of 12, 13,

Canada (Waterloo: Wilfred Laurier University Press: 1997) 14, 15

Williams, B. "Looking for Linda: Identity in Black and White" 27

Child Welfare (1987)Vol. LXVI (3), 207-215.

Page No.

Wright, L., "One Drop of Blood," in The New Yorker, July 1994 14

Wright, M., "I am Chocolate, You're Vanilla: Raising Healthy Black 22, 23, 26, 30,

and Biracial Children in a Race-Conscious World - A Guide for Parents 31, 32

and Teachers (San-Francisco: Jossey-Bass, 1998)

Zuniga, M. "Transracial Adoption: Educating the Parents", Journal of 32

Multicultural Social Work (1991) Vol. 1(2), 17-31.

STATUTES AND INTERNATIONAL INSTRUMENTS RELIED ON

Page No.

Canadian Charter of Rights and Freedoms, s. 15, s. 27 3, 4, 21, 33, 34, 35

Divorce Act, S.C. 1985 as amended, c. 3, ss. 16(8), 16(10) 5, 6

Table of Provincial Custody Legislation 6

Table of Provincial Child Welfare Legislation 6

International Convention On the Elimination of All Forms of Racial 11

Discrimination, 1966, U.N.T.S. No.195; U.K.T.S. 77 (1969), article 1.1

UN Convention on the Rights of the Child, UN Doc A/RES/44/25, 1989 11