BOOK REVIEWS
CHRONIQUE BIBLIOGRAPHIQUE
Susan Maidment, Child Custody and Divorce: The Law in Social Context.
London: Croom Helm, 1984. Pp. xii, 324 [16.951. Reviewed by Susan B.
Boyd.*
It is difficult to deny that efforts to integrate the discipline of law with
the other social sciences have progressed further in England than in Canada.
A recent example of such efforts in England is Child Custody and Divorce
by Susan Maidment, a Senior Lecturer in Law at the University of Keele
who has engaged in earlier empirical research on custody and access.’ In-
deed, Maidment positions her book squarely in the recent tradition of ac-
quainting lawyers and judges with the relationship between law and other
social sciences. Her specific interest is to elaborate upon the effect which
other social sciences, such as psychology and sociology, can and should have
on legal decision-making, particularly in the area of custody decisions. She
wishes to “make available to lawyers this large body of knowledge about
the social process in which the legal process played only a small part”, as
well as to contribute positively to the legal decision-making process and
“make possible ‘better’ decisions, decisions that [are] more in accord with
informed social science understandings of the problem”. 2 More broadly,
Maidment wishes to dispel scepticism in the legal profession “that a desire
to incorporate current social science understandings about children and
families into legal decision-making founders on a recognition that such
understandings may be incomplete, controversial, speculative or time –
and culture – bound”. 3
Maidment’s purpose is narrower than that which characterizes other
recent works emanating from England. For instance, Carol Smart’s The Ties
That Bind4 examines the reciprocal effect which law and society have on
one another, emphasizing the role which law plays in reproducing patriarchal
*Of the Department of Law, Carleton University.
IS. Maidment, “Access Conditions in Custody Orders” (1975) 2 Brit. J.L. & Soc. 182; S.
Maidment, “A Study in Child Custody” (1976) 6 Fam. L. 200.
2S. Maidment, Child Custody and Divorce: The Law in Social Context (London: Croom
Helm, 1984) at vii [page numbers in Preface are not indicated].
3Ibid. at 81-82.
4C. Smart, The Ties That Bind: Law, Marriage and the Reproduction of Patriarchal Relations
(London: Routledge & Kegan Paul, 1984).
McGill Law Journal 1986
Revue de droit de McGill
REVUE DE DROIT DE McGILL
[Vol. 31
relations. In comparison to Smart and others such as Julia Brophy, 5 Maid-
ment is concerned primarily with exploring the effect which other social
sciences should have on the law, as opposed to the effect which law has on
society. The reciprocal effect is implicitly if uncritically acknowledged, 6 but
a concrete analysis of the ideological content of law is absent, a point to
which I shall return.
Maidment has certainly succeeded in making accessible to the legal
profession a large body of social science knowledge, and she has woven such
information around discussion of the legal issues involved in custody de-
cisions both past and present. One of her main contentions is that “the
welfare principle … is essentially a value-laden tool for focussing on the
child in an attempt to resolve disputes between its parents”. 7 After intro-
ducing the concept of “the welfare of the child” (Chapter 1), she outlines
the legal structure surrounding English custody decisions (Chapter 2) and
the practical means for determining the welfare of the child, and thus de-
termining custody (Chapter 3). Two historical accounts follow, the first
concerning the judicial creation of the welfare principle (Chapter 4) and the
second the relationship between the women’s rights movement and the
development of the welfare principle (Chapter 5). A social perspective on
custody law and especially the welfare principle is developed in Chapter 6,
which focuses on studies which have examined whether children of divorce
are “at risk”. The next three chapters analyze, in both their legal and social
contexts, three main considerations in custody decision-making, namely the
parents (Chapter 7), the status quo in terms of relationships and environ-
ment (Chapter 8) and the wider family, including siblings, grandparents and
step-parents (Chapter 9). The remaining substantive chapters deal with two
topical issues, access and joint custody. Maidment not only presents the
legal structure surrounding all of these topics, but also looks at the law in
practice and in social context. Whether the fragmentation of the analysis of
the various custody issues into their various contexts and perspectives re-
sults in a coherent and smoothly-flowing whole is questionable; some re-
dundancy is evident, often leaving the reader with a sense of d~je vu. On
5J. Brophy, “Child Care and the Growth of Power. The Status of Mothers in Child Custody
Disputes” in J. Brophy & C. Smart, eds, Women in Law: Explorations in Law, Family and
Sexuality (London: Routledge & Kegan Paul, 1985) 97.
6See, e.g., Maidment, supra, note 2 at 72, 147 and 281.
7lbid. at 90.
1986]
CHRONIQUE BIBLIOGRAPHIQUE
the other hand, the detail provided in each chapter more or less counter-
balances the problem, which may simply be one of editing.8
Of most interest to the Canadian legal and “helping” professions may
be the presentation of studies (primarily psychological and American) which
challenge the notion that children of divorce are necessarily “at risk”. 9 If
children of divorce are not particularly “at risk” and if factors such as the
quality of a continued relationship with both parents can mitigate the effects
of divorce,10 then judges may be wrong to assume that giving custody to
one parent over another will avert the “dangers” of stress and emotional
disruption which these children face. Judges are urged to recognize that
“their own views of the needs of children, which they are in the privileged
position to be able to impose, are the product of particular social interests”.I1
Assumptions sometimes made by judges that young children are better off
with their mothers or that a child’s present caretaker is his or her only
“psychological parent” are rebutted,12 foreshadowing Maidment’s later em-
brace of a version of the joint custody approach: “[O]ne of the most im-
portant indicators of success is the quality of post-divorce relationships with
both parents.” 13 The conclusion drawn from empirical studies which indi-
cate strong psychological ties with the “non-caretaker” parent is that while
the environmental status quo and stability are very important to children,
psychological relationships with both parents should be retained in all pos-
sible cases.
One unusual aspect of Maidment’s plea for a form of joint custody is
her argumeit that the legal system must impose a responsibility on parents
to continue in their roles as parents after divorce. 14 This responsibility would
match the correlative right of children “to be protected against the damage
caused by losing one parent”. 15 Such a scheme raises questions about the
freedom of adults and families from state intervention and is diametrically
opposed to the thesis of Goldstein, Freud and Solnit 6 that children are best
8Given the minor errors and omissions found in the text, as well as the not infrequent lapses
into sexist language, one may well wonder how much attention the editors devoted to the text.
9Maidment, supra, note 2 at 161-72. It should be noted that the main focus of Maidment’s
discussion is admittedly “ordinary” divorces with “good” parents and that she presumes that
these constitute a majority of divorces: supra at 278.
‘I0 bid. at 171.
“Ibid. at 11.
‘2Ibid at 211.
13lbid at 215.
‘4Ibid. at 279.
15lbid.
16J. Goldstein, A. Freud & A.J. Solnit, Beyond the Best Interests of the Child (New York:
Free Press, 1973); J. Goldstein, A. Freud & AJ. Solnit, Before the Best Interests of the Child
(New York: Free Press, 1979).
McGILL LAW JOURNAL
[Vol. 31
left in the unfettered control and custody of one parent. Maidment’s legal
imposition of an ongoing parental responsibility on divorcing parents would
be achieved not by creating a presumption ofjoint custody as in California,
but rather by making access or parental contact “a mandatory consideration
and a presumption in all children of divorce cases, whether contested or
not, and whether the parent applies for an access order or not”. 17 A “chil-
dren’s residence order” which dictates only the physical care of the child
would replace current orders for custody; the rights of custody other than
physical control and care would continue to reside in both parents.’ 8
Child Custody and Divorce clearly has a much wider significance than
simply as a treatment of the English law on custody and access, and it
therefore merits a place on the shelves of those Canadians who desire easy
access to recent empirical studies and debates on custody. Still, some con-
cerns regarding Maidment’s theoretical framework must be raised. First,
while Maidment continually stresses that she wishes to present the law in
its social context, the studies presented are predominantly psychological or
psychoanalytical in nature. Indeed, in the conclusion to Chapter 5 on the
historical connection between the legal emancipation of women and the
reform of custody laws, she states that “[t]his historical account of the ero-
sion of the ‘sacred right of the father’ … has been a formal analysis” and
that “[ilt must be left to sociologists and social historians to fill in the details
of family organisation both within the subsisting marriage, and on its break-
down”. 19 Surely such a statement is inconsistent with Maidment’s stated
intention to provide a social context to the law and ignores the latest work
by both sociologists and lawyers on the relationship between the law, family
and society.20 The exclusion of recent contributions which analyze the roles
which the state and the legal system play in reproducing gender relations
leads Maidment to a rather naive optimism about the capacity of judges to
assimilate social science knowledge, which, coupled with their “empathy
and intuition”, is supposed to lead to better decisions. 21
Similarly, the exhortation of state-enforced equal parental rights and
duties after divorce raises questions about the capacity of the legal system
to effect social change, barring wider changes in social attitudes and the
removal of structural obstacles to equal parenting both before and after
divorce. While the ideological role of the law is admittedly very powerful,
7Maidment, supra, note 2 at 279.
1
18Ibid. at 280.
19Ibid. at 143.
20See, e.g., M. Barrett & M. McIntosh, The Anti-social Family (London: Verso, 1982); M.D.A.
Freeman, ed., State, Law, and the Family: Critical Perspectives (London: Tavistock, 1984);
Brophy & Smart, supra, note 5.
2’Maidment, supra, note 2 at 153.
1986]
BOOK REVIEWS
we cannot overestimate its potential for leading society away from the ide-
ology of motherhood. It is all very well to argue that the law should not
discriminate against fathers in custody orders and orders for possession of
the matrimonial home,22 but attention must still be paid to the living stan-
dard of most women and their dependents, which usually plummets on
divorce. 23 In fact, most mothers continue to sacrifice their working careers
to child-rearing to some extent both during and after marriage.24 Maidment’s
argument for equal treatment of fathers25 and her call for research on the
family as a group rather than on individual parent-child relations 26 fail to
recognize the gender inequalities and oppression which are inherent in the
nuclear family and which cannot be eradicated simply by the goodwill of a
“children’s residence order” symbolizing equal rights and duties of parents.27
In conclusion, despite some arguably misleading assumptions, this book
contains many valuable insights, a clarification of much recent empirical
research and, especially, an effort to integrate law and at least one other
social science. For these reasons, it merits examination by Canadians in-
terested in child custody and divorce.
22Ibid. at 179.
23M. MacLean & J. Eekelaar, “The Economic Consequences of Divorce for Families with
Children” in J.M. Eekelaar & S.N. Katz, eds, The Resolution of Family Conflict: Comparative
Legal Perspectives (Toronto: Butterworth, 1984) 488.
24p Armstrong & H. Armstrong, The Double Ghetto: Canadian Women and Their Segregated
Work (Toronto: McClelland & Stewart, 1978) at 75-86.
25Maidment, supra, note 2 at 179.
26Ibid. at 150-51.
27See Brophy, supra, note 5 at 109 for similar criticisms. It should also be noted that Maid-
ment’s assumption of a “bi-nuclear family system” of “two inter-related households, maternal
and paternal” excludes the social fact of gay parents from consideration in her proposed legal
framework. Maidment, supra, note 2 at 267.
Jacques L’Heureux, Droit municipal quibcois: Tome 1 L’organisation. Montr6al:
Sorej, 1981. Pp. xxiv, 280 [$30.001; Jacques L’Heureux, Droit municipal
qu bcois: Tome 2 Pouvoirs gingraux-fiscaliti-urbanisme. Montreal: Wilson
& Lafleur/Sorej, 1984. Pp. xxvii, 487 [$50.00]. Reviewed by Jane Matthews
Glenn.*
In a sense, a review of these two volumes is both past due and pre-
mature: past due because the first volume appeared five years ago and the
second, now two; premature because the final volume of the projected three-
volume work has not yet been published. Yet this review is timely because
the volumes that have appeared cover substantial ground, including those
such as regional government, local democracy, municipal taxation
areas –
in which the legislator has been particularly active
and land use planning –
in recent years.
When eventually completed, Professor L’Heureux’s study will provide
a synthesis of the law of Quebec governing local municipalities. The first
of two major parts, dealing with municipal organization, comprises the
initial volume. The second part, on municipal powers, was originally in-
tended to form the second volume, but the subject matter proved so ex-
tensive that the author felt constrained to spread its treatment over two
volumes.’
The existing second volume contains a general discussion of the powers
of a municipality as well as a closer look at those relating to taxation and
land use planning. As would be expected, the discussion of the former centres
on the Act Respecting Municipal Taxation2 and the latter, the Act Respecting
Land Use Planning and Development.3 In neither case, however, is this
concentration exclusive. The planning section, for example, also considers
the role of a municipality in regard to demolition control, heritage preser-
vation, urban renewal and agricultural zoning. The discussion of specific
powers (in this case, those relating to public services and municipal con-
tracts) is slated to continue in the third volume, which will also contain a
final chapter on administrative and judicial control of municipalities as well
as a general conclusion on the decentralization of Quebec municipal authority.
Wilson & Lafleur/Sorej, 1984) at vii [hereinafter L’Heureux, vol. 2].
*Of the Faculty of Law and School of Urban Planning, McGill University.
1J. L’HeureuxDroit municipalqugbcois: Tome2 Pouvoirsgtn&raux-fiscalitburbanisme(Montrl:
2S.Q. 1979, c. 72 as am. R.S.Q. c. F-2.1.
3S.Q. 1979, c. 51 as am. R.S.Q. c. A-19.1.
McGill Law Journal 1986
Revue de droit de McGill
1986]
CHRONIQUE BIBLIOGRAPHIQUE
The scope of the study is therefore ambitious. The author – Professor
of Law at Laval University, member of the Bar of Quebec, lecturer in its
professional training programme and author of numerous articles in the
field –
is one of the few Quebec jurists qualified to carry it out successfully.
The scholarship throughout is meticulous, as the numerous footnote ref-
erences attest. The citation of Quebec material, which is exhaustive, is sup-
plemented by more selective reference to, and occasional analysis of, leading
cases from other Canadian provinces. This feature, coupled with the fact
that Quebec law in the area is similar in principle to the law elsewhere in
Canada, statutory differences aside, makes this study of greater interest to
readers outside Quebec than its title might initially suggest.
While the approach is basically descriptive (the first volume setting out
the law as of 30 June 1981 and the second, as of 1 January 1983), the author
does not hesitate to point out various lacunae or incoherencies in the leg-
islation,4 to suggest the correct approach from among opposing lines of
jurisprudence, 5 to criticize vigorously particular decisions, 6 to disagree with
other authors7 or to condemn the action of government officials.8
Both volumes are handsomely produced and remarkably free of ty-
pographical errors. Neither contains an index, table of cases or bibliography,
but these are scheduled for inclusion in the third volume9 –
together with,
one hopes, a table of legislation.
Three observations appear appropriate, however: two directed to sub-
stance and one to form.
Firstly, and more technically, while it would seem that City of Ottawa
v. Boyd Builders Ltd 0 remains available in Quebec to justify a municipal-
ity’s refusal to issue a building permit when it is in the process of modifying
its zoning by-law simpliciter,II it is questionable whether this decision can
4See, e.g.,
. L’Heureux, Droit municipal qu~bcois: Tome I L’organisation (Montral: Sorej,
1981) at 87 [hereinafter L’Heureux, vol. 1] (ineligibility to stand for election because of non-
payment of municipal taxes); L’Heureux, vol. 2, supra, note 1 at 627-31 (conformity of mu-
nicipal plans and by-laws).
5See, e.g., L’Heureux, vol. 2, ibid. at 287-91 (content of notices of motion), 338-41 (criterion
of municipality’s public domain) and 695-98 (enlargement and extension of non-conforming
uses).6See, e.g., ibid. at 571-79 (opinion of the Commission nationale de l’amenagement on con-
formity of plan and by-law).
7See, e.g., ibid. at 752-53 (harmonization of agricultural zoning and general planning legislation).
8See, e.g., ibid. at 641-42 (exercise of disavowal powers).
9lbid. at vii.
10(1965), [1965] S.C.R. 408, 50 D.L.R. (2d) 704 [hereinafter Boyd Builders].
“‘Heureux, vol. 2, supra, note 1 at 703-12.
McGILL LAW JOURNAL
[Vol. 31
be invoked when the amendment is coupled with the adoption or modifi-
cation of a regional or local plan. To put it another way, it would no longer
seem correct to look upon Boyd Builders as offering an indirect method of
giving legal effect to plans.12 This is so, it is suggested, because of the pro-
visions in the Quebec statute for interim development control.’ 3 Boyd Build-
ers represents ajudicially-sanctioned freeze on development until an anticipated
by-law can be put into force. Interim development control constitutes, in
the case of the adoption of a plan (regional or local), a statutorily-instituted
freeze lasting from the time a municipality first decides to commence the
planning process until it implements the plan by by-law. In the case of a
subsequent modification to one or other plan, interim development control
is equivalent to a statutorily-authorized freeze running from the date the
first draft is approved until the change is put into effect by amendment to
the by-laws. 14 These provisions would seem so extensive as to preclude any
recourse to Boyd Builders, but we would have welcomed Professor L’Heu-
reux’s analysis of this particular question.
Secondly, and more generally, some fuller explanation of the reasons
behind individual rules or regulations would have been desirable. To take
but one example, the discussion of regional county municipal structure’ 5
could have been enlivened by a consideration of the political realities that
militate in favour of, say, a veto being given to a particular component
municipality. The presence of incisive and provocative conclusions regard-
ing the land use planning powers’ 6 makes one regret all the more keenly
the absence of similar observations elsewhere.
A final comment goes to form. This study grapples with a basic problem
inherent in any comprehensive treatment of Quebec municipal law. For
essentially historical reasons, Quebec has a patchwork of local and regional
municipalities, each operating under a separate statute. Although the various
legislative frameworks are similar in principle, they differ from each other
in detail. Rural local municipalities come under the aegis of the Municipal
Code, 17 urban municipalities, the Cities and Towns Act.’8 County munici-
palities, also governed by the Municipal Code, are giving way to regional
county municipalities created under the Act Respecting Land Use Planning
and Development,’9 but the latter nevertheless retain some of the former’s
12Ibid. at 621-24 (regional plans) and 632-34 (local plans).
‘3Supra, note 3, ss 61-75 (regional plans) and ss I 11-112.1 (local plans).
4Ibid., s. 48 (regional plans) and s. 109 (local plans).
15L’Heureux, vol. 1, supra, note 4 at 72-73, 140-41 and 220-28.
16L’Heureux, vol. 2, supra, note 1 at 754-57.
7 R.S.Q. c. C-27.1.
1
18R.S.Q. c. C-19.
19Supra, note 3.
1986]
BOOK REVIEWS
Code powers. Professor IHeureux has wisely defined his subject so as not
to make the legislative mosaic even more intricate, confining his study to
legislation of general application and excluding from consideration the Charters
of the Cities of Quebec and Montreal and the legislation governing the three
Communities (the Urban Communities of Montreal and Quebec and the
Outaouais Regional Community).20 He has carefully threaded his way through
the various statutes to present a comprehensive, and comprehensible, pic-
ture. In doing so, however, he has sacrificed a measure of readability. He
has opted to organize the material in such a way that the discussion of a
particular point under each statute stands on its own, with a minimum of
cross-references. Thus we have a comprehensive examination of the dis-
positions of the Municipal Code, followed by a separate but equally complete
treatment of the corresponding provisions of the Cities and Towns Act,
governing such questions as municipal annexation, 21 voter approval of by-
laws 22 or the sale of property for tax arrears. 23 This same organizational
principle has been carried through in other areas, such as the discussion of
the distinction between regional plans, local plans and by-laws, a discussion
which appears in slightly different form four times in all.24 This arrangement
undoubtedly makes the text more accessible as a reference tool, but it does
so at the cost of repetition.
The work will prove indispensable to the Quebec practitioner and may
be read with profit by those whose interest in the subject is of broader
dimensions.
20LHeureux, vol. 1, supra, note 4 at ix.
21Ibid. at 53-58 (Municipal Code) and 58-64 (Cities and Towns Act).
22 LHeureux, vol. 2, supra, note 1 at 294-98 (Municipal Code) and 298-305 (Cities and Towns
Act).
23Ibid. at 520-41.
24Ibid. at 566-68 (content of regional plans), 570-79 (content of local plans) and 606-09 and
626-28 (conformity).
Margaret Carter, compiler, Early Canadian Court Houses. Ottawa: Envi-
ronment Canada, 1983. Pp. 258 [$13.951. Reviewed by Philip L. Webster.*
Has Canada developed a unique court house type as a result of her
geography, customs or mixed legal system? What was the significance of
court houses in early Canadian society? Was there a stylistic and mor-
phological development of Canadian court houses as the country blossomed
and came of age? What were the influences, especially in terms of foreign
architectural developments, on Canadian courts ofjustice? And finally, what
can a reader interested in the law learn from a study of early court houses?
These are some of the questions which a perusal of Early Canadian
Court Houses first brought to mind. The front cover superimposes the pro-
files of three ever-larger, stylistically different yet clearly inspiring buildings,
thereby whetting the appetite of the architectural historian, while the inside
cover announces that the work falls under the auspices of the “Studies in
Archaeology, Architecture and History” sponsored by the National Historic
Parks and Sites Branch of Parks Canada. However, old adages about books
refuse to die: many of these questions and issues are ignored or insufficiently
addressed, the expectations engendered by the cover are not fully met and
the book must ultimately be judged incomplete, falling short of its objective
of making a significant contribution to Canadian architectural history and
criticism. This is not to say, however, that the book does not achieve some
of its more modest goals.
In 1980, when Margaret Carter first suggested for publication a series
of essays on court houses in each region across Canada, she outlined clearly
the scope and intent of the study. She wrote:
Court houses are among the most conspicuous public buildings in Canada.
Their prominence reflects the importance Canadians have long attached to
their courts as instruments ofjustice and symbols of social stability. This study
examines the early surviving examples of this building type within the context
of the court systems they were built to serve, the choice of designs and means
of construction employed in various parts of the country during its formative
years, and the roles the buildings subsequently performed within their respec-
tive communities.’
As the above passage promises, and in keeping with her position as Head,
Architectural History, Canadian Inventory of Historic Building, Carter has
*Auxiliary Professor, School of Architecture, McGill University.
IM. Carter, compiler, Early Canadian Court Houses (Ottawa: Environment Canada, 1983)
at 4.
McGill Law Journal 1986
Revue de droit de McGill
1986]
CHRONIQUE BIBLIOGRAPHIQUE
in fact compiled a richly illustrated inventory of a specific type of historic
Canadian building –
the court house. As such the cataloguing is complete,
yet she remains vague about why, in such an inventory, the study had to
be limited to “early” court houses. There is but a single reference to this
limitation, and that not until the conclusion:
One further limitation placed on the work was the imposition of a cut-off date,
since the intention of the study was to discuss only early court houses. At first,
the Canadian Inventory of Historic Building’s pre-World War I cut-off date of
1914 was applied across Canada; however, this limitation included most eastern
court houses but excluded a substantial proportion of western court houses.
To balance the contents of the study, the cut-off date in western Canada and
northern Ontario was therefore extended to 1930.2
The rationale for these two differing cut-off dates appears to lie in the
sanctified Canadian concept of regional equalization: it would be uncon-
scionable for the West to be under-represented – even though the examples
simply do not exist. Still, either “early” means pre-World War I as arbitrarily
defined and this definition should have been adhered to, or else all later
examples should have been analyzed as well. Since the author acknowledges
that few court houses have been built since 1914 in the East or since 1930
in the West, it is regrettable that these latter edifices were not included.
Certainly “Early Canadian Court Houses” has a quainter ring than “Canadian
Court Houses” would have had. However, as we are all affected by the
especially if we find ourselves living or working in
buildings around us –
them –
is not the building completed in 1980 as influential a part of our
cultural heritage as a long-since destroyed example from 18803 Ironically,
the most important Canadian court house, the Supreme Court of Canada
(built in Ottawa in 1938-39 to the design of one of Canada’s pre-eminent
architects of the era, Ernest Cormier 4), is mentioned only as a building whose
construction post-dates the study and thus must be omitted from consid-
eration! For the most part, the few post cut-off examples are extremely
significant court houses (e.g., Montreal, Toronto and Ottawa), prominent
both architecturally and historically. As major centres ofjurisprudence, they
ought to have been included in any inventory of this building type.
2M. Carter, “Conclusion” in Carter, ibid., 199 at 199.
3An example of this phenomenon is Maison Alcan, the Alcan Aluminum Ltd head office in
Montreal completed in 1983. Maison Alcan incorporates several noted historical buildings with
a modem new structure, a concept which has already influenced other North American cities’
treatment of their existing architecture.
4Ernest Cormier is best known in Montreal as the designer of the University of Montreal’s
main buildings in 1925, for his collaboration with L.A. Amos and C.J. Saxe on the Nouveau
Palais de Justice of 1926 (now home to Quebee’s Ministry of Cultural Affairs) and for his
stylistically integral Art Nouveau house on Pine Avenue in which former Prime Minister Pierre
Elliott Trudeau now resides. For an appreciation of the Trudeau house, see S.M. Alsop, “Ar-
chitectural Digest Visits: Pierre Trudeau” Architectural Digest (January 1986) 106.
McGILL LAW JOURNAL
[Vol. 31
The book comprises six individual regional essays by a combination
of authors, 5 bracketed by Carter’s overview and conclusion.6 Each essay
starts with the earliest recorded meeting place for the administration of
justice in the region under study and proceeds chronologically, discussing
representative examples until the applicable cut-off date. As each region is
studied in a virtual vacuum, continual back-tracking and repetition of his-
torical data and analysis proves necessary.
For readers with only limited knowledge about the development of
Canadian judicial administration, the book is most informative and inter-
esting. The underlying theme is not so much a historical analysis of the
architecture but rather an examination of the changes in and development
of the judicial system. As stated by G.E. Mills in introducing his chapter:
“This study will examine the history of British Columbia’s judicial system,
and the types of buildings that housed its courts during successive phases
before 1930.”7
Judicial history becomes interpreted through architecture. Each chapter
thus analyzes the distinctive judicial system of its region and explains why
court houses were built in certain localities at given times. The analysis of
each court house focuses more on cause and function than on its place in
the region’s architectural history.
In an attempt to lend coherence to the separate studies, Carter distin-
guishes three basic types of early court houses and labels them “simple,
compound and complex”. 8 The simple court houses are typically small one-
storey structures serving the needs of an inferior circuit court but not usually
occupied year-round for judicial purposes. They may also serve for munic-
ipal meetings and entertainment and are found throughout Canada except
on the Prairies. The compound court houses generally contain the inferior
courts of a district or a county town and share their premises with other
institutions of local legal administration such as jails, sheriffs’ offices, registry
offices, law libraries and judges’ chambers. The complex court houses are
usually for superior courts and are located in large urban centres. They are
generally large structures which house numerous court functions, often in
5R.R. Rostecki, “Early Court Houses of Newfoundland” in Carter, supra, note 1, 21; C.A.
Hale, “Early Court Houses of the Maritime Provinces” in Carter, supra, note 1, 37; A. Giroux,
“Early Court Houses of Quebec” in Carter, supra, note 1, 78; K. Crossman & D. Johnson,
“Early Court Houses of Ontario” in Carter, supra, note 1, 100; G.E. Mills et aL, “Early Court
Houses of the Old Territorial North West and the Prairie Provinces” in Carter, supra, note 1,
130; G.E. Mills, “Early Court Houses of British Columbia” in Carter, supra, note 1, 169.
6M. Carter, “The Canadian Court House: An Overview” in Carter, supra, note 1, 7 [herein-
7Mills, supra, note 5 at 169.
8Carter, “Overview”, supra, note 6 at 11.
after:. Carter, “Overview”]; Carter, supra, note 2.
1986]
BOOK REVIEWS
conjunction with government offices. The old Toronto City Hall at Queen
and Bay Streets, which was also home to the York County Court House, is
an important example of a complex court house. Examples of the three
types of court houses in the province of Quebec include, respectively, the
Brome County Building of 1859, the Sherbrooke Court House of 1839-41
designed by William Footner (who also designed Montreal’s Bonsecours
Market in 1845) and the second Montreal court house of 1851-57 designed
by John Ostell and H. Maurice Perrault. 9
The other means of classification adopted by Carter is according to the
authority responsible for court house construction. These break down es-
sentially into two main categories: local (or county) level and central (usually
provincial) level. The type of authority varied by region, by period and with
specific changes in judicial administration. For instance, the passage of a
series of statutes10 in 1849 reorganizing Upper Canada’s system of local
government resulted in twenty-one of the forty court houses constructed in
Ontario before World War I being built in the eighteen-year period to 1866.
These buildings all came under the aegis of local authorities and show great
diversity of style and functional complexity.II At the other extreme, the
Quebec architect EP. Rubidge, chief architect of the Board of Works, pre-
pared a standard plan which was followed with only minor variations in
fourteen district court houses throughout what is now Quebec from 1857
to 1866. The court houses of St Jean, Beauce, Joliette, Terrebonne, Richelieu,
Rimouski, Montmagny, Arthabaska, St Hyacinthe, Bedford, Iberville, Beau-
harnois, Saguenay and Chicoutimi all follow Rubidge’s plans.’ 2 Between
these two extremes lay other manners for the exertion of local or central
authority. Most common was a method of “control through approval”,
whereby design and construction were delegated to local architects and builders
by a central provincial architect, Board of Works or Department of Public
Works.’ 3 In other cases a chief architect with his own staff designed indi-
vidual court houses for a centralized authority. The Morden (1904-05), Bran-
law courts designed under the
don (1908-10) and Winnipeg (1912-16)
9John Ostell, one of the most prominent architects in nineteenth-century Montreal, also
designed the towers of Notre Dame Church in the 1840s and the Grand Seminaire of 1854.
His nephew and partner, H. Maurice Perrault, continued his practice and was the architect of
the 1873 Banque du Peuplejust offPlace d’Armes, the 1878 City Hall and the 1894 Monument
National.
‘0Upper Canada Municipal Corporations Act, S. Prov. C. 12 Vict. (1849), c. 81; Act for
Abolishing the Territorial Division of Upper-Canada into Districts, andfor Providingfor Tem-
porary Unions of Countiesfor Judicial and Other Purposes, andfor the Future Dissolutions of
Such Unions, as the Increase of Wealth and Population May Require, S. Prov. C. 12 Vict.
(1849), c. 78, s. 11.
IICrossman & Johnson, supra, note 5 at 112.
‘2Giroux, supra, note 5 at 83-84.
13Carter, “Overview”, supra, note 6 at 17.
REVUE DE DROIT DE McGILL
[Vol. 31
supervision of the first chief architect of Manitoba, Samuel Hooper, are
examples of such centralized authority.’ 4 Similarly, Kivas Tully, the noted
Toronto architect who was chief architect for the Department of Public
Works between 1867 and 1896, and his successor Frank R. Heakes produced
court houses in northern Ontario of ever-increasing complexity and grandeur
As Carter states in her overview,
The authority responsible for court house construction is, then, one of the
general factors responsible for the nature of Canadian court houses. This was
not a factor operating in isolation, but rather through the medium of men who
were themselves subject to the prevailing conditions and ideas of their times.
As a result, there were other, less direct historical trends that influenced the
type of court house buildings that appeared in Canada.’ 5
Unfortunately (at least from the point of view of architectural history), too
much emphasis is placed on studying and documenting the responsible
authority and not enough attention is paid to the other factors, “the pre-
vailing conditions and ideas of the time” –
specifically the effect of general
architectural trends both in Canada and abroad and the influences of pre-
vious court houses upon their successors. Just as the common law evolves
continually through new precedents, so too does virtually all architecture. 16
Very few buildings represent truly new departures; those that do should be
given special attention when they incontestably influence future architec-
ture. Conversely, the precedents for most buildings can usually be deter-
mined. Since any building which is not a mere copy rests on a continuum
of stylistic change, it is the challenge of architectural historians to analyze
buildings against this progression. With very few exceptions, this is not
attempted in Early Court Houses of Canada.
The York County Court House/Toronto City Hall mentioned earlier,
designed by E.J. Lennox and constructed between 1889 and 1900, is a case
in point. It is recognizable as one of the seminal buildings of Canadian
architecture: its size, dual function and location at the centre of the then-
rapidly expanding city of Toronto would alone be enough to ensure its place
in the city’s heritage. More significant historically, however, is the fact that
it embraced so strongly the Romanesque Revival style developed by the
American Henry Hobson Richardson. 17 The Toronto building is closely
modelled after Richardson’s Allegheny County Building in Pittsburgh, which
was completed after his death in 1886 and described by Mariana Griswold
t4Mills et al., supra, note 5 at 147-48.
15Carter, “Overview”, supra, note 6 at 19.
16For a comparison of the role of precedent in law and in architecture, see P. Collins, Ar-
17Richardson has another connection with American legal history: he was also commissioned
chitectural Judgement (Montreal: McGill-Queen’s University Press, 1971).
in 1881 to design Austin Hall, the main building at Harvard Law School.
19861
CHRONIQUE BIBLIOGRAPHIQUE
Van Rensselaer at the time as “the most magnificent and imposing of [Rich-
ardson’s] works”, 18 its tower “beautiful as a piece of design and … appro-
priate as expressing the civic power which has its throne beneath these
roofs”. 19 The Toronto City Hall/Court House ranks as one of the best ex-
amples of Richardsonian Romanesque in Canada and clearly influenced
other court houses of the time, specifically the St John’s Court House of
1901-04 by William H. Greene and the Nelson Court House in British
Columbia by Francis Mawson Rattenbury of 1907-09. This is but one ex-
ample of how a foreign prototype was introduced into Canada and then
became part of our architectural heritage. 20 But since each region is studied
independently, these cross-provincial connections are not drawn (although
each building is acknowledged as “Romanesque Revival”). The absence of
any such pan-Canadian analysis seriously detracts from the book’s cohesion.
In fairness to Carter, she makes no pretence of being overly concerned
with historical stylistic influences. Rather, in discussing “less direct historical
trends that influenced the type of court house buildings that appeared in
Canada”, she brushes aside the whole issue in this manner:
Among these trends were the contemporary ideas about court house con-
struction that came to Canada through other countries. These ideas encompass
exterior style, interior arrangement, use of materials and building siting. They
appear to have originated in several countries including Britain, France and
the United States, and neither their origin nor their vogue on an international
level is difficult to demonstrate. What has proven awkward to identify in Canada
is the means by which they entered the country; such vague explanations as
“through the experience of immigrants and travellers,” and “in the pages of
international magazines” are unsatisfying unless they can be linked to specific
people, articles and buildings. Indeed, although some court houses clearly fol-
low the modes set by international arbiters, many more do not. Apparently
other, more immediate factors were often a determining influence. In any case,
even when international fashions in court house design did influence decisions
on a particular building, these must be regarded in relation to local conditions;
consequently, such incidents have been discussed in their more immediate
regional contexts.2′
With the exception of Kelly Crossman and Dana Johnson’s “The Early
Court Houses of Ontario”, 22 where a real effort is made to document the
various influences on Ontario court houses, there are very few instances
18M.G. Van Rensselaer, Henry Hobson Richardson and His Works (New York: Dover, 1969)
at 93.
19Ibid at 92.
20For a discussion of Richardson’s influence on Canadian architecture, see A. Gowans, Build-
ing Canada: An Architectural History of Canadian Life (Toronto: Oxford University Press,
1966) at 134-38.
2’Carter, “Overview”, supra, note 6 at 19.
22Supra, note 5.
McGILL LAW JOURNAL
[Vol. 31
where “their origin or their vogue on an international level” is demon-
strated. While such a demonstration might not be difficult, Carter has left
the task to other architectural historians.
Another important concept which is left largely unexplored is that of
the role of the court house in the life and image of Canadian towns and
cities. The authors are content to affirm the connection between a “public”
style of architecture, the notion of justice and the public’s active partici-
pation in an open judicial system. Unlike the secrecy of the unofficial legal
system in Franz Kafka’s The Trial, in which courts were located in the back
rooms of apartment houses or approached through the attics of apparently
ordinary houses, Canadian judicial buildings serve as a “physical symbol
of law and order [and] constitute a familiar form of public building ….
Court houses were often consciously created to evoke images of justice and
stability by their architects and builders. ‘ 23 However, on another level they
play a major role in the creation of civic centres. They help to establish the
heart of an urban setting and add distinction and importance to a given
town. This is especially true in Ontario, where local authorities vied with
each other to establish pre-eminence in a region.
Two of the best examples of court houses being marshalled as expres-
sions of local importance rather than of the power and stability of the law
are the towns of Cobourg and Niagara-on-the-Lake. Victoria Hall, formerly
the seat of the Northumberland County Court House in Cobourg, designed
by Kivas Tully and erected between 1856 and 1860, is the “most extravagant
example of the judicial building as symbol”, 24 a monument to the municipal
council’s high expectations for the town’s future importance subsequent to
the completion of a new railway. Unfortunately, Crossman and Johnson
report that “in spite of its magnificence, the court house was not a financial
success; it plunged the town into near bankruptcy when the expected eco-
nomic boom collapsed with the failure of the railway”. 25 Likewise, the court
house became central to the rivalry between Niagara-on-the-Lake and St
Catharines. In 1847, the County of Lincoln, in one of its last acts towards
its original seat of government, built a court house in Niagara to the design
of William Thomas. However, with the building of the second Welland
Canal, St Catharines prevailed economically over Niagara and the St Ca-
tharines town hall, designed by Tully in 1849, was enlarged and designated
the Lincoln County Court House. The Niagara building, in turn, slipped
back to mere town hall status.26
2 3Carter, supra, note 2 at 199.
24Crossman & Kelly, supra, note 5 at 117.
25Ibid. at 120.
26Ibid. at 112-14; see also RJ. Stokes, Old Niagara on the Lake (Toronto: University of
Toronto Press, 1971) at 88.
1986]
BOOK REVIEWS
The importance of the court house on the townscape of young and
growing Canadian municipalities cannot be underestimated. Its location was
almost always central and dominant, and in most cases it was the principal
provincial presence outside the provincial capital. Court houses, writes Har-
old Kalman in “Canada’s Main Street”, were “imposing buildings which
expressed the power of the law and added to the quality of the town; they
were usually designed in a classical mode and built of local materials”. 27
They competed for civic prominence and recognition with the federal gov-
ernment’s post office or “federal building” (combining post office with cus-
toms house, Department of Agriculture offices, etc.), the municipal
government’s town hall and sometimes the local public library. Collectively,
they enhanced the main streets of our growing towns, stretching federal and
provincial institutions and hence presence across the land. As Hector Lan-
gevin, Minister of Public Works in the Macdonald government, asserted in
1886, a growing nation had to have “public offices on a scale commensurate
with the wealth and extent of the city”. 28 While Langevin was referring
particularly to federal buildings, the same notion clearly permeated the thinking
of provincial and county authorities in the design and construction of court
houses. Crossman and Johnson show this developing grandeur in Ontario,
as does Mills in British Columbia. This phenomenon was not as pronounced
in Quebec or the Atlantic provinces and is therefore not analyzed by Andr6
Giroux, 29 C.A. Hale30 or R.R. Rostecki, 3 1 while in the West and in northern
Ontario many of the most flagrant examples were built after the World War
I cut-off date imposed in the East.
Another concept unpursued in the book under review is that of the
court house as a distinct building type, recognizable as a “public” building
and yet clearly distinguishable from a church, theatre or post office. Nikolaus
Pevsner, the eminent British architectural historian, devotes an entire chap-
ter of his encyclopedic A History of Building Types to law courts, grouping
them vith town halls as “government buildings from the eighteenth cen-
tury”. 32 It is thus apparent that this particular combination is not a uniquely
Canadian phenomenon. Pevsner shows that early European law courts most
often were held in town halls, just as early Canadian courts did not have
their own buildings but shared their premises with other institutions. The
Old Barrington Meeting House of 1765, built in Barrington, Nova Scotia
27H. Kalman, “Canada’s Main Street” in D. Holdsworth, ed., Reviving Main Street (Toronto:
University of Toronto Press, 1985) at 18.
28Ibid.
29Giroux, supra, note 5.
30Hale, supra, note 5.
3 Rostecki, supra, note 5.
32N. Pevsner, A History of Building Types (Princeton: Princeton University Press, 1976) at
53-62.
REVUE DE DROIT DE McGILL
[Vol. 31
in the distinctive New England salt-box style of Cape Cod and Nantucket,
served simultaneously as court house, religious meeting hall and local com-
munity centre, as did many of the “simple” early Canadian court houses. 33
Pevsner contends that “[s]eparate monumental buildings for law courts be-
gan in the English provinces of York … in 1705” and in France only in the
late eighteenth century with the megalomaniacal designs of E.L. Boull~e. 34
Only in the mid- to late 1800s did a court house “type” develop in Europe,
and even then this form of civic building remained closely aligned mor-
phologically with the town hall from whence it developed.
The essays in Early Canadian Court Houses omit any examination of
the common characteristics of this form of building. Despite great variation,
the “style” of numerous court houses of this eclectic period of architecture
– whether Neo-Classic, Romanesque Revival, Neo-Gothic or simple folk
vernacular –
contains certain strong constants. They are seen as public and
therefore dominant buildings in their communities; they perform a strong
civil function and are important to the cultural life and prestige of the
municipality; they are imposing “frontal” buildings which symbolically rep-
resent the authority of the government and by extension the power and
importance of the law; they are grand and inspiring yet welcoming and
public.
Much has been made in this review of what Early Canadian Court
Houses fails to tell us, or what could have been learnt from the raw infor-
mation presented in the study. Admittedly, these criticisms and concerns
are the product of a subjective viewpoint, that of an architect. The most
interesting and informative feature of the book, as it stands, is not what we
learn about architecture, but rather what we learn about history –
especially
the development ofjudicial institutions throughout Canada. An understand-
ing of the co-existence of Canada’s disparate regional institutions can be
gained by looking at the changes in judicial administration in the various
provinces. Newfoundland’s judicial system, for instance, began with trials
held aboard ships, before taking root in small settlements throughout the
island. Under the influence of William Henry Churchill, architect and su-
perintendent of public building, a number of similar yet distinct wooden
court houses were built in numerous centres, thereby appearing to entrench
a decentralized legal system. However, as Rostecki concludes:
Churchill retired in 1927 and in 1933 official reports recorded approxi-
mately twenty-six court houses on the island. After World War II, improved
transportation reduced the need for so many buildings. Once-thriving centres,
such as Trinity and Burin, lost their status as judicial centres, and their court
houses were converted to other purposes. Others, such as the Twillingate Court
33Hale, supra, note 5 at 46-48; see also Gowans, supra, note 20, plate 51.
3Pevsner, supra, note 32 at 53.
1986]
CHRONIQUE BIBLIOGRAPHIQUE
House (1884), burned down. Lastly, newer and more efficient structures re-
placed often ill-maintained, poorly lit and inadequate structures such as the
Bell Island Court House (1900). As a result, only nine court houses remain in
Newfoundland in 1977, and this figure will probably be reduced in the next
several years, for most of these are aging wooden structures and not all have
borne the marks of time well. This is the end product of a court system that
maintained approximately forty court houses at the turn of the century.
Today, court premises are sometimes rented, and it is not unknown for
court cases to be held aboard the magistrate’s launch. In some ways judicial
today as in the eighteenth
facilities in Newfoundland have turned full circle –
century, courts occur in large centres and aboard ship.35
Similarly, while the judicial system in Prince Edward Island was de-
centralized in the nineteenth century, it is now being concentrated in Char-
lottetown as a result of improved transportation. By contrast, most of the
regional court houses of Quebec, Ontario and British Columbia continue
to serve a largely decentralized judiciary. The history of the legal institutions
in each province being so varied and unique, the structures erected to house
these institutions inevitably reflected provincial and regional characteristics.
Let us now return to the original queries. It has been seen that Canadian
court houses, especially when viewed regionally rather than nationally, de-
veloped distinctive characteristics as a result of geography, time of con-
struction and cultural influences, not to mention provincial legislation and
the authority responsible for their construction. They played a key role as
symbols of justice in a young but rapidly developing country, coming to
stand as important civic monuments adding prestige, sophistication and a
sense of “place” to emerging regional centres. The early court house was a
distinctly recognizable building type which was greatly influenced by ar-
chitectural styles both in Canada and abroad.
Judges, clerks and many lawyers spend considerable time in court houses.
Those interested in history and in their physical surroundings will enjoy
Early Canadian Court Houses. They may chuckle at the financial embar-
rassment of the town fathers of Cobourg over the construction of Victoria
Hall, come to appreciate the similarities between the court houses of Joliette
and Chicoutimi, learn more about the development of various judicial in-
stitutions in each province of Canada and discern the stylistic influences of
Osgoode Hall on the Montreal Court House of 1851-57.
Finally, some jurists may pause as they enter a contemporary court
house, such as the one in Montreal designed by David, Barett and Boulva
and completed in 1971. They may look around this building and ask them-
selves whether it constitutes a distinctive building type or is indistinguish-
able from an office tower. Does it evoke “an image of justice and stability”
35Rostecki, supra, note 5 at 36.
368
McGILL LAW JOURNAL
[Vol. 31
as does its neighbour and predecessor, or does it imply that law is just
another business activity like, say, life insurance? Does this courthouse con-
tribute to a sense of “place” in the urban fabric of Montreal or might a
visitor stroll right past it in search of Cormier’s Nouveau Palais de Justice,
with his magnificent bronze doors? Perhaps some architects will ask them-
selves similar questions; perhaps they will search for precedents and turn
to the inventory of Early Canadian Court Houses for source material. They
may then determine how these lost qualities exhibited by earlier court houses
can be recaptured and integrated into future court house designs.
