Family Structures and Canadian Family Law

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 1-13

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Family Structures and Canadian

Family Law

A. DEFINITIONS OF “FAMILY”

e term “fam ily” does not have a precise legal denition. L aw tends to regu-

late 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 L aw of Persons insofar as it concentrates on the

rights of indiv iduals whose fam ily relationships have become dysfunctiona l.

In short, Canadian family law deals primarily with the pathology of family

breakdown and its lega l consequences.

People often perceive “marri age” and “family” as s ynonymous, but these

words are not interchangeable in law. e term “ family” is elusive and dees

exact denition. Many, but not all, Canadian families are the products of a

marri age. More often than not, the presence of children sig nies a family re-

lationship. Child ren may be born within or outside of ma rriage. eir parents

may or may not live together. e parents may have lived toget her before or

after the birt h of the child, but may no longer do so by reason of separation

or divorce. Some children are adopted. In relatively rare sit uations, 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 the y reside but this is not invar iably true. Some chil-

dren do not live with either of their parents or with aunts, unc les, or grand-

parents. ey may live in foster homes or even w ith friends or neighbours. A

new de facto fa mily may co-exist w ith the family of origin.

Family relationships c an exist when there is neither marr iage nor a parent-

child or ancestral relationship. Unmarried couples of the opposite sex or

same sex may be regarded as members of the same fami ly for social or legal

purposes.