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 obli gations of individua ls, as disti nct from groups, such

as families, howe ver they may be constituted. Canadia n family law mi ght

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, Canad ian fami ly law deals pri marily w ith the pathology of fa mily

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n ition. Many, but not all, Canadi an famil ies 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 resu lted from surrogate parenti ng arrangements or the u se

of new reproductive technologies. Children are us ually fam ily 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 t heir 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 ancestra l relationship. Unma rried couples of the opposite sex or

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

purposes.