Family Structures and Canadian Family Law

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 1-20

 

FAMILY STRUCTURES AND

CANADIAN FAMILY LAW

A. DEFINITIONS OF “FAMILY”

eterm“family”doesnothaveapreciselegaldef‌inition. Lawtendsto

regulatetherightsandobligationsofindividuals,asdistinctfromgroups,

such as families, however they may be constituted. Canadian family law

might more properly be called the Law of Person s insofar as it concen-

trates on the rights of individuals whose fami ly relationships have be-

come dysfunctional. In short, Canadian family law deals primarily with

the pathology of f amily breakdown and its legal consequenc es.

People often perceive “marriage” and “fam ily” as synonymous but

these words are not interchangeable in law. e term “family” is elusive

anddef‌iesexactdef‌inition. Many,butnotall,Canadianfamiliesarethe

product of a marr iage. More often than not, the pre sence of children sig-

nif‌ies a family relationship. Children may be born within or outside of

marriage.eirparentsmayormaynotlivetogether.eparentsmay

havelived togetherbeforeor after the birth of thechild but may nolonger

do so by reason of separation or di vorce. Some child ren are adopted. I n

relatively rare sit uations, a chi ld’s birt h may have resulted f rom surro-

gate parenting ar rangements or the u se of new reproductive tech nolo-

gies. Children are usuallyfamily members ofthe householdin which they

residebutthisisnotinvariablytrue.Somechildrendonotlivewitheither

of their parents or with aunts, uncles, or grandparents. ey may live in



CANADIAN FAMILY LAW

foster homes or even wit h friends or neig hbours. A new de facto family

mayco-existwiththefamilyoforigin.

Family relat ionships can ex ist when there is neit her marriage nor a

parent-child or ances tral relationship. Unma rried couples of the opposite

sex or same sex may be regarded as members of the same family for social

or legal purposes.

Whethertheindiciaofafamilyrelationshipinvolvemarriage,parent

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hood, a common household, or t he sharing of responsibilitie s, there are

many unresolved legal questions concerning the characterization of

“families” and therights and obligations of diverse family members.

Although some w ill look back wit h nostalgia to t he traditiona l nuclear

family of thes, withits breadwinninghusband, its homemaking wife,

andtheirtwochildren,thatisnowaminoritygroupintermsofcontem

-

porary familystructures in Canada.Today, Canadianfamilies take a wide

variety of forms. ey include childless marriages, two-parent families,

single-parent families in which the mother is the primary caregiver, sin-

gle-parent families where the father is the primary caregiver, unmarried

cohabitants w ith or without children, and blende d or reconstit uted fam-

ilies that a re the product of sequential cohabit ational relationships inside

or outside marriage. Family structuresmay also vary accordingto ethnic

and cultu ral fac tors. Customa ry Inuit adopt ions, for example, bear lit tle

resemblance to the statute-based systems of adoption that exist in the

Canadian provinces andterritories.

Traditional notions of t he fami ly must clearly be re-examined i n the

search for rational and equitable social and legal policies. In the f‌inal an-

alysis, it may be impractica l for the law to endorse a monolithic def‌init ion

of “family” that applies for all legal purposes. As in the past, the extent to

which the law will recognize a family relationship mayturn on the nature

of the relationship a nd the purpose for which such recog nition is sought.

B. FUNCTIONAL SIGNIFICA NCE OF DEFINITIONS

FamilylawinCanadahasfocusedonthetraditionalnuclearfamily.Our

federal divorc e laws are based on monogamous m arriage. Scant att ention

is direct ed towards the r ights and respon sibilities of member s of the ex-

tended fami ly, such as grandp arents, aunt s, and uncles . Even provincia l

legislation tend s to focus on regulating the economic and parenti ng con-

sequences of marriage breakdown, although issues of spousal and child

support and custody and access can arise independently of the status of