C. Evolution of Family Law

Author:Julien D. Payne - Marilyn A. Payne

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Federal, provincial, and territorial legislation regulating the rights and obligations of family members has been largely piecemeal in its evolution and no coherent family policy has been articulated, particularly in the context of the relationship between the so-called private system of family law, which regulates the personal rights and obligations of spouses, parents, and children as between themselves, and the public system that provides social assistance, tax concessions, pension and medical health schemes, and the like.

The predominant legislative trend has been towards the assertion of individual rights and obligations, rather than the assertion of any family right.

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Family law statutes are largely premised on the notion that any form of government intervention is an intrusion upon privacy that can only be justified in the event of a breakdown in the family relationship, a reasonable apprehension of domestic violence, or child abuse and neglect.

Revolutionary changes to family law occurred in Canada with the passage of the first dominion-wide Divorce Act in 1968. With this federal legislation serving as a catalyst, Canadians have witnessed radical changes in all aspects of family law. The dimensions of change have been immense. Before 1968, adultery constituted the sole ground for divorce, except in Nova Scotia where matrimonial cruelty constituted an alternative ground for relief. In Quebec and Newfoundland, divorce was only available by private Act of Parliament. With the enactment of the Divorce Act in 1968, "no-fault" divorce grounds were introduced in addition to an extended list of "offence" grounds. In addition, formal legal equality of support rights and obligations was established for the first time in Canada between divorcing and divorced men and women. Although the Divorce Act of 1986 amended the law relating to the criteria for divorce, spousal and child support, and custody and access in such a way as to shift the focus of the courts from the grounds of divorce to an almost exclusive emphasis on the economic and parenting consequences of divorce, the truly radical breakthroughs occurred with the Divorce Act of 1968, which paved the way for future federal, provincial, and territorial statutory changes.

Before 1968, the support of divorcing or divorced spouses was regulated by provincial and territorial statutes that imposed a unilateral obligation on a guilty husband to maintain his innocent wife in the event of a breakdown of their marriage ensuing from his commission of adultery, cruelty, or desertion. The same principles applied to spousal support claims brought independently of divorce proceedings. During the 1970s and 1980s, many provinces and territories enacted legislation that eliminated the offence concept as the foundation of spousal support rights and obligations. In addition, following the precedent established by the federal Divorce Act of 1968, the right to spousal support on marriage breakdown in the absence of divorce became no longer confined to wives under provincial and territorial legislation; a financially dependent spouse of either sex might look to his or her marital partner for financial support. The governing consideration was no longer sex-based but turned upon the financial needs of the claimant and the ability of his or her spouse to pay. Each spouse was expected, however, to strive for financial self-sufficiency. Thus, marriage was no longer legally perceived as creating a presumed right to lifelong financial support for a dependent spouse in the event of marriage breakdown.

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These changes in the right to divorce and the right to spousal support on divorce or marriage breakdown were accompanied by equally fundamental changes in provincial and territorial statutes governing the division of property on marriage breakdown or divorce. Separated and divorced wives no longer found themselves in the prejudicial position in which Irene Murdoch found herself in 1973 when the Supreme Court of Canada denied her any interest in a ranch registered in her husband’s name because her contributions in the home and in the fields were perceived as non-financial contributions ordinarily expected of a rancher’s wife.1Although three years later the Supreme Court of Canada abandoned Murdoch in favour of a more enlightened approach in Rathwell,2the inequities of the Murdoch case triggered provincial and territorial legislation that provided for property sharing on marriage breakdown that was no longer based on ownership or who purchased the property.

Another fundamental change in family law has been the evolution of legal rights and obligations between unmarried cohabitants. Following the pattern established in cases like Rathwell from Saskatchewan, which involved married couples before the implementation of statutory property rights in the 1970s and 1980s, unmarried cohabitants have been accorded property rights on the dissolution of their relationships on the basis of the constructive trust and the doctrine of unjust enrichment. Rosie Becker, who did not live to enjoy the fruits of her legal victory in the Supreme Court of Canada in 1980, paved the way for the application of the doctrine of unjust enrichment to unmarried cohabitating couples of the opposite sex,3although there is nothing in the Supreme Court of Canada’s analysis that precludes the application of similar principles to same-sex couples. Contemporaneously with these judicial developments dealing with property rights, many Canadian provincial statutes provided an extended definition of "spouse" so as to establish spousal support rights and obligations between cohabitating couples of the opposite sex who lived together for a designated period of time or had a child together. A later development in this context has been the extension of similar support rights and obligations between cohabitating couples of the same sex. This was achieved in 1999 by the Supreme Court of Canada’s M v H4 judgment applying the equality provisions of section 15 of the Canadian Charter of Rights and Freedoms.5

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Major statutory reforms in children’s rights have also occurred in the last thirty years. Due process changes respecting children were promulgated in the late 1970s and early 1980s in the context of child protection legislation. In the 1960s, no one...

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