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”
e 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 fam ily law
might more properly be called the Law of Persons i nsofar a s it concen-
trates on the rights of individuals whose family relationships have be-
come dysfunctional. I n short, Canadian fa mily law deals pri marily with
the pathology of family brea kdown and its legal consequences.
People often perceive “marriage” and “family ” as synonymous but
these words are not interchangeable in law. e term “family” is elusive
and defies exact definition. Many, but not all, Canadian families are t he
product of a marriage. More often than not, the presence of children sig-
nifies a fami ly relationship. Children may be born w ithin or outside of
marriage. eir parents may or may not live together. e parents may
have lived together before or after the birth of the chi ld but may no longer
do so by reason of separation or divorce. Some children are adopted. In
relatively rare situations, a child’s birt h may have resulted from surro-
gate parenting arrangements or the use of new reproductive technolo-
gies. Children a re usually family members of the household in which t hey
reside but this is not invariably t rue. Some children do not live with either
of their parents or with aunts, uncles, or g randparents. ey may live in
1
2CANADIAN FAMILY LAW
foster homes or even with friends or neighbours. A new de facto family
may co-exist with the fa mily of origin.
Family relationships can ex ist when there is neither marri age nor a
parent-child or ancestral relationship. Unmarried couples of the opposite
sex or same-sex may be regarded as members of the same fa mily for social
or legal purposes.
Whether the indicia of a fam ily relationship involve marriage, parent-
hood, a common household, or the sharing of responsibil ities, there are
many unresolved legal questions concerni ng the characterization of
“famil ies” and the rights and obligations of diverse family members.
Although some will lo ok back with nos talgia to the trad itional nu-
clear family, with its breadwinning husband, its homemaking wi fe, and
their children, that is a minority group in terms of contemporary family
structures in Canada. Today, Canadian families take a wide variety of
forms. ey include childless marriages, two-parent families, single par-
ent families in wh ich the mother is the primar y caregiver, single parent
families where the fat her is the primary caregiver, unmarr ied cohabitants
with or without children, and blended or reconstituted families t hat are
the product of sequential cohabit ational relat ionships in side or outside
marriage. Family structures may also var y according to ethnic and cul-
tural factors. Customa ry Inuit adoptions, for example, bear litt le resem-
blance to the statute-based systems of adoption that exist in Canadian
provinces a nd territories.
Traditional notions of the family must clearly be re-examined in the
search for rational and equitable social a nd legal policies. In the fina l an-
alysis, it may be impractical for the law to endorse a monolithic defin ition
of “family” that applies for all legal purposes. As in the past, the extent to
which the law will recogn ize a family relationship may turn on the natu re
of the relationship and the purpose for which such recognit ion is sought.
B. FU NCTIONAL SIGNIFICANCE OF DEFI NITIONS
Family law in Canada has focu sed on the traditional nuclear fami ly. Ou r
federal divorce laws are based on monogamous marriage. Sc ant attention
is directed towards t he rights and responsibilit ies of members of the ex-
tended family, such as grandparents, aunts, a nd uncles. Even provincial
legislation tends to focus on regulati ng the economic and parenting con-
sequences of marriage breakdown, although issues of spousal a nd child
support and custody and access can a rise independently of the status of
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