A. Definitions of “Family”

Author:Julien D. Payne - Marilyn A. Payne

Page 1

The term "family" does not have a precise legal definition. Law tends to regulate the rights and obligations of individuals, as distinct from groups, such as families, however they may be constituted. Canadian family law might more properly be called the Law of Persons insofar as it concentrates on the rights of individuals whose family relationships have become dysfunctional. In short, Canadian family law deals primarily with the pathology of family breakdown and its legal consequences.

People often perceive "marriage" and "family" as synonymous, but these words are not interchangeable in law. The term "family" is elusive and defies exact definition. Many, but not all, Canadian families are the products of a marriage. More often than not, the presence of children signifies a family relationship. Children may be born within or outside of marriage. Their parents may or may not live together. The parents may have lived together before or after the birth of the child, but may no longer do so by reason of separation or divorce. Some children are adopted. In relatively rare situations, a child’s birth may have resulted from surrogate parenting arrangements or the use of new reproductive technologies. Children are usually family members of the household in which they reside but this is not invariably true. Some children do not live with either of their parents or with aunts, uncles, or grandparents. They may live in foster homes or even with friends or neighbours. A new de facto family may co-exist with the family of origin.

Family relationships can exist when there is neither marriage nor a parent-child or ancestral relationship. Unmarried couples of the opposite sex or same sex may be regarded as members of the same family for social or legal purposes.

Page 2

Whether the indicia of a family relationship involve marriage, parenthood, a common household, or the sharing of responsibilities, there are many unresolved legal...

To continue reading