Family Structures and Canadian Family Law
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 1-17 |
Family Structures and Canadian
Family Law
A. DEFINITIONS OF “FAMILY”
e term “fa mily” does not have a precise legal defin ition. Law tends to regu-
late the rights and obli gations of individua ls, as dist inct from groups, such
as families, however they may be constituted. Canadian family law m ight
more properly be cal led the Law of Persons insofa r as it concentrates on the
rights of indiv iduals whose family re lationships have become dysfunct ional.
In short, Canadian f amily law dea ls primari ly with the pathology of fa mily
breakdown and its lega l consequences.
People often perceive “mar riage” and “fami ly” as synonymous but these
words are not interchangeable in law. e term “fa mily” is elusive and defies
exact definition. Many, but not al l, Canadi an families are the product of a
marri age. More often than not, the presence of chi ldren signifies a family re-
lationship. Children may be born within or outside of marriage. eir parents
may or may not l ive together. e parents may have lived together before or
after the birth of the child but may no longer do so by rea son of separation
or divorce. Some chi ldren are adopted. In rel atively rare situations, a child’s
birth may have resulted from surrogate parenting arrangements or the use of
new reproductive technologies. Children are usually f amily members of t he
household in which they reside but this is not invari ably true. Some children
do not live with either of their parents or with aunts, uncles, or grandparents.
ey may l ive in foster homes or even with fr iends or neighbours. A new de
facto fami ly may co-exist with the f amily of origin.
Family relationships can exist when there is neither marriage nor a parent-
child or ancestral rel ationship. Unmarried couples of the op posite sex or sa me-
sex may be regarded as members of t he same family for social or lega l purposes.
Whether the i ndicia of a fa mily rel ationship involve marriage, parent-
hood, a common household, or the sharing of responsibilities, there are many
unresolved legal questions concernin g the character ization of “families” and
the rights and obligat ions of diverse family members.
Although some will look back with nostal gia to t he traditional nuclear
family, with its bre adwinning husband, its homema king wife, and their c hil-
dren, that is a minority group in ter ms of contemporary fami ly structures in
Canada. Today, Canadia n families take a wide va riety of forms. ey include
childless ma rriages, two-parent fam ilies, single parent families in whic h the
mother is the prim ary caregi ver, single parent fami lies where t he father is
the primar y caregiver, unmarried coha bitants with or without children, and
blended or reconstituted families that are the product of sequential cohabita-
tional relationships inside or outside marr iage. Family st ructures may also
vary according to ethnic and cult ural factors. Customary Inuit adoptions, for
example, bear litt le resemblance to the statute-based systems of adoption
that exist i n Canadian provinces and ter ritories.
Traditional notions of the family must clearly be re-examined in the
search for rational and equitable social and le gal policies. In the final an aly-
sis, it may be impractical for the law to endorse a monolith ic definition of
“fami ly” that applies for all legal purposes. As in the past, the extent to which
the l aw will recognize a family rel ationship may t urn on the nature of the
relationship and the pu rpose for which such recognition is sought.
B. DIV ERSITY OF FAMILY STRUCTURES:
FUNDAMENTAL POLICY QUESTIONS
Recent years have witnessed changes in the identification of issues relating
to chang ing family st ructures in Canada. e t wo-income family, the high di-
vorce rate, t he increasing incidence of unm arried cohabitation, the chang ing
needs of the labou r force, cultu ral diversity resulting from immigrat ion, the
ageing of the Canadian population, and many other factors have generated
new challenges for C anada. Contemporary policy is sues include the following:
) Is a national ch ild-care program desirable?
) To what extent should Canadian law impose rights and obligations on
unmarr ied cohabitants of the opposite sex or of the same sex?
) How should law and society resp ond to the growing awareness of famil y
viol ence?
See Will iam N. Eskridge, Jr., “Compa rative Law and the Sa me-Sex Marr iage Debate”
() McGeorge L. R ev. .
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